Second of a three part series: Harassment in the Workplace

In our previous article, we outlined what harassment is and how state laws govern most harassment related legislation. We also mentioned the conditions, outlined by the Supreme Court in Vance v. Ball State University, under which an employer in any state is liable for an employee’s harassment. The employer is liable if the perpetrator is the victim’s supervisor, i.e., a person who has authority over employment decisions or the daily work activities of an employee. The employer is also liable if the company has been negligent, i.e., has no process in place to prevent harassment.

Thankfully, the methods to avoid allegations of negligence and can go a long way toward protecting the business owner from lawsuit. In this article, we’ll discuss best practices for harassment prevention every employer should know.

Best practices: A well-reasoned anti-harassment policy

Creating and communicating a strict, clear policy on harassment is the best way to keep potential harassers in check and create a sense of safety among all employees. Though an employer is not automatically liable for not having an anti-harassment policy, not having a policy eliminates a potentially important defense against future harassment claims.

Essential elements

• Specify the non-sexual basis for harassment (e.g. race, religion, national origin, age, disability, and genetic information).
• Specify the types of behavior that violate your policy, and what the penalties for these behaviors are. Give examples.
• Even if you do not have an HR department, designate people outside the chain of command to accept complaints. If a supervisor is the harasser or cannot be impartial, the employee needs to have other officials to report to. There should always be an available and impartial point of contact for any employee that wants to report harassment.
• State intolerance for retaliation against anyone who complains of harassment or is involved in a proceeding related to harassment.
• Clearly set out the investigation procedure.
• Get acknowledgment. Have employees sign on paper or electronically for their policy (and store their signed copies in case of a future charge), and go over the policy verbally with any illiterate employees.

Suggestions

• Write the policy in plain language that all employees can understand. This means writing it in plain English and translating the policy into any other languages your employees speak.
• Encourage employees to report harassment immediately, before it has become severe or pervasive.
• Assure that harassment complaints will be handled with as much confidentiality as possible.
• Consider prohibiting harassment based on sexual orientation or gender identity. It may be necessary in your state or if you’re a federal contractor.
• As social media and smartphones are becoming ubiquitous in the workplace, blurring personal and professional lines, it’s increasingly important to address cyber harassment specifically.
• If your policy includes protections beyond the legal requirements, include contract disclaimer language to prevent becoming legally liable for upholding these protections. See Marini vs. Costco for an example of how an excellent personnel manual citing very high standards might backfire in court.

Best practices: Effective training

Wouldn’t it be wonderful if simply publishing a thorough, clear policy were enough to educate employees on harassment? Unfortunately, most people need a little more guidance than that. The effective communication of your policies will take some strategizing, resource allocation, and consistency.

Guidelines for different types of employees

• Supervisors. Managers and supervisors are your greatest liability and your greatest asset. Start with a very thorough training of 2.5 hours that covers specific examples and legal implications of harassment (with real life examples!), as well as details of your policy. A shorter session can follow every 12-18 months.
• Pseudo-supervisors. Employees who don’t have the power to hire and fire other employees but are still seen as leaders in some way should also get special attention because they are likely to receive some harassment claims. Give them the management version of training, either as a separate session or as participants in the management training itself.
• Non-management. Conduct training sessions every 12-18 months of about an hour which explain your policy, what harassment is, the consequences of harassment, how to report it, and what retaliation is.
• Temps, independent contractors, and interns. Make sure to give all employees, especially those considered low in the hierarchy, your anti-harassment training.
• Multilingual employees. If some (or even one!) of your employees is not fluent in English, invest in a translator.
• New employees. Give new hires the first session of training as quickly as you can, even if it’s in the form of a recording of a previous session.

How to make the training “stick”

• Make sure the speaker is engaging. Hire someone from outside your company if necessary.
• Hold multiple sessions, so that everyone can attend and can engage better with each other and the speaker as a smaller group.
• Have an HR representative at every session to answer specific questions. They might also gain some insight simply by attending the session about current or potential problems.
• Illustrate harassment using live presentations and concrete examples.
• Keep the training relevant by basing examples on recent cases.
• Use multiple methods, such as live actors, discussion, quizzes, and videos, to keep employees engaged. A simple role-playing exercise practicing conversation between a potential harasser and someone who feels offended by them can demonstrate ways to prevent situations from spiraling out of control.

If you follow these steps, you’re well on your way to creating a safe work environment and protecting yourself from vicarious liability for an employee’s harassment. In the next article of this series, we’ll talk about what to do when even the best prevention methods fail and a harassment claim is made.

As always, we are here to help you any way we can. Please don’t hesitate to call or email if you need us.

The Deerfield Team
 800.233.6428
info@deerfieldadvisors.com

SOURCES:

Bridgeford, Lydell C. “Q&A: SOME TRICKY ASPECTS OF ANTI-HARASSMENT TRAINING, RETALIATION CLAIMS.” Bloomberg BNA Labor & Employment Blog, Jul 16 2013. http://www.bna.com/qa-tricky-aspects-b17179875217/

Bussing, Heather. “When Employers are Liable for Harassment.” HR Examiner, June 24 2013. http://www.hrexaminer.com/when-employers-are-liable-for-harassment/

Miller, Bridget. “What Should Be Included in Anti-Harassment Training?” HR Daily Advisor, May 23 2014. http://hrdailyadvisor.blr.com/2014/05/23/what-should-be-included-in-anti-harassment-training/#

Monsees, Paul R. “Employer’s Super Anti-Harassment Policy May Increase Its Liability.” Labor & Employment LawPerspectives, Dec 8 2014.  http://www.laboremploymentperspectives.com/2014/12/08/employers-super-anti-harassment-policy-may-increase-its-liability/

“Questions and Answers for Small Employers on Employer Liability for Harassment by Supervisor.” The U.S. Equal Employment Opportunity Commission, April 1 2010. http://www.eeoc.gov/policy/docs/harassment-facts.html

Shea, Robin. “5 Harassment Must-Haves for Employers.” Employment and Labor Insider, May 29, 2015.http://www.employmentandlaborinsider.com/harassment/5-harassment-must-haves-for-employers/

Wilkie, Dana. “Anti-Harassment Training Following the Supreme Court’s Vance Ruling.” Society for Human Resource Management, July 16 2013. http://www.shrm.org/hrdisciplines/employeerelations/articles/pages/anti-harassment-training-following-supremecourt-vance-ruling.aspx

“Workplace Harassment Benchmark Survey Demonstrates How Organizations are Addressing New and GrowingEmployment Law Challenges.”  NAVEX Global, May 20 2013. http://www.navexglobal.com/company/press-room/workplace-harassment-benchmark-survey-demonstrates-how-organizations-are

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