Does your dealership have a policy against discrimination and harassment? Does it cover all forms of discriminatory harassment? Does it prohibit discrimination on the basis of genetic information or sexual preference? Does it provide employees with multiple contacts to report complaints or concerns? If you answered “no” to any of these questions, it is time to dust off your dealership employee handbook and review your dealership employment policies to ensure that they reflect the current state of the law!

Clear policies can define what is expected of employees and what they can expect from the dealership. They also can promote consistent treatment among dealership employees and the uniform handling of internal procedures, such as complaint and reporting mechanisms. Importantly, however, a discriminatory harassment policy (like all policies in your dealership employee handbook) must be up-to-date. Recent legal developments affect a wide variety of employment policies – and discriminatory harassment is no exception.

Must your dealership implement a discriminatory harassment policy? Yes!

In order to promote a workplace free from all forms of discriminatory harassment, and to minimize your dealership’s liability under anti-discrimination laws, the dealership must develop and communicate clear policies against discriminatory harassment. Implementing and maintaining such policies can not only help to reduce the occurrence of discrimination and harassment in the dealership workplace, but also can provide the first line of defense against legal liability if such harassment does occur.

The Courts have made clear that employers will be held liable for co-worker harassment only if the employer “knew or should have known” that harassment was taking place, yet failed to take prompt action to remedy the situation and bring an end to the harassment. With respect to allegations of supervisory harassment, however, the United States Supreme Court has made clear that employers will be automatically liable for such conduct unless they can establish an affirmative defense. The affirmative defense requires your dealership to demonstrate that it exercised reasonable care to prevent and correct promptly any discriminatory or harassing behavior; and the employee unreasonably failed to take advantage of the protective or corrective procedures or to otherwise avoid harm.

What does this defense mean for your dealership? The dealership must implement a policy that prohibits all forms of discrimination and harassment and provides an adequate reporting and investigation procedure for employees to follow. In addition, your dealership must provide discriminatory harassment training for all supervisors and managers – and the dealership may wish to consider providing such education to all employees.