50 For 50: Five Decades Of The Most Important Discrimination Law Developments - Number 27: Discrimination and Harassment Policies in Handbooks

by Hirschfeld Kraemer LLP
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Before Title VII, employee handbooks were rare and, if they existed, they were small pamphlets explaining intra-office procedures.  It wasn’t until the proliferation of lawsuits under Title VII that employers began to craft lengthy, substantive handbooks for employees.  

In the 1990’s, employers started to have good reason to have a strong handbook.  With the passage of the Family and Medical Leave Act, employers were required to notify employees of their rights under the law.  And, in the late 1990’s, the U.S. Supreme Court found that employers could often avoid liability when an effective anti-harassment policy is ignored by an employee.  Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998).  As if that was not enough, a year after Faragher and Ellerth, the Supreme Court ruled that courts should consider an employer’s anti-harassment policies and programs in determining whether punitive damages should be imposed.  Kolstad v. American Dental Ass’n, 527 U.S. 526 (1999).

Although the courts have not dictated the specific contents of a harassment or discrimination policy, there are several legal opinions noting key components of a defensible policy.  First, the policy should define what is considered inappropriate harassment and discrimination, noting the protected EEO characteristics (i.e., race, national origin, religion, sex, etc.) which are prohibited bases for differential treatment.  Second, the policy must set forth a reporting procedure that allows a victim to bypass the offending supervisor and complain to someone higher in the management chain or a human resources official.  Third, the employer should make clear that employees who violate the policy will be disciplined.  Lastly, a sound policy assures employees that no reprisals would be made against them for making a good faith complaint of harassment or discrimination.

The EEOC has been more descriptive in its Policy Guidance about requirements of appropriate harassment policies.  In particular, the EEOC states that “every employer should provide every employee with a copy of the policy and complaint procedure in handbooks or posters,” and redistribute periodically.  As outlined by the EEOC, an anti-harassment policy and complaint procedure should contain, at a minimum, the following elements: (1) a clear explanation of prohibited conduct; (2) an assurance that employees who make complaints of harassment or provide information related to such complaints will be protected against retaliation; (3) a clearly described complaint process that provides accessible avenues of complaint; (4) assurance that the employer will protect the confidentiality of harassment complaints to the extent possible; (5) a complaint process that provides a prompt, thorough, and impartial investigation; and, (6) an assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred.  According to the EEOC, this policy should make clear that the employer will not tolerate harassment based on sex (with or without sexual conduct), race, color, religion, national origin, age, disability, and a protected activity (i.e., opposition to prohibited discrimination or participation in the statutory complaint process).  And, the prohibition should cover harassment by anyone in the workplace – supervisors, co-workers or non-employees.

Lastly, the policy should encourage employees to report harassment before it becomes severe or pervasive. The EEOC provides that the employer must make clear to employees that it will stop harassment before it rises to the level of a legal violation in order to satisfy the employer’s duty of preventive care under Title VII.

The EEOC has also identified crucial components of an effective complaint process.  Specifically, the procedure should be designed to encourage victims to come forward, it should clearly explain the process, and provide accessible points of contact for the initial complaint.  Further, an employer should designate at least one official outside an employee’s chain of command to receive complaints.

It is noteworthy; however, that existence of an adequate policy and complaint procedure, by itself, is not enough to establish the Ellerth and Faragher affirmative defense to a plaintiff’s Title VII claim.  If a manager or Human Resources fails to carry out the responsibility to conduct an effective investigation of a complaint, then the employer will not have discharged its duty to exercise reasonable care and cannot meet the first element of the affirmative defense.  In addition, this affirmative defense is not available when a supervisor’s unlawful harassment culminates in a tangible employment action, such as a firing, demotion, or other adverse employment action resulting in economic harm to the complaining party.

The EEOC also describes best practices in creating and applying employer’s anti-discrimination policies to avoid religious discrimination, national origin discrimination and race discrimination.

It is wise for every employer – large or small – to disseminate anti-harassment and anti-discrimination policies and a complaint procedure to its employees.  The policies and reporting procedure, which must be clear and easy to understand, should be updated regularly.  Your employees should acknowledge the receipt and understanding of these policies in writing, and to regularly train both managers and workers on the policies and how to identify prohibited conduct.

 

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Hirschfeld Kraemer LLP
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