Employers not only may be held liable for workplace harassment, but they have the potential for separate liability for not taking reasonable steps to prevent the harassment from occurring. Govt C §12940(k). One step every employer should take is to draft and disseminate an anti-harassment policy. Note that the mere existence of a policy prohibiting harassment isn’t enough to shield the employer from liability. To work as a shield, the policy must be adequate and it must be distributed to employees. Does your client’s policy include all of the elements in this checklist?
___ Statement of commitment. The policy should state that the employer is committed to providing a workplace free from all forms of prohibited harassment, and that the employer won’t tolerate such harassment of its employees by co-employees, supervisors, or nonemployees (vendors and customers) with whom the employee deals during work.
___ Description of sexual harassment. Describe what constitutes sexual harassment and give examples, such as “sexual innuendoes, suggestive comments, sexually oriented teasing or practical jokes, display of sexually suggestive pictures or other materials, suggestive or insulting sounds, looks, or gestures, and any unwanted physical contact.”
___ Description of other types of harassment. Describe other prohibited harassment, including examples, such as “making slurs, innuendos, or potentially offensive comments or jokes; the display of potentially offensive cartoons, posters, or other materials; distributing potentially offensive pictures or words in written, pictorial, or electronic form; touching, or other unwanted attention; threats, intimidation, or other abusive behavior.”
___ Reporting requirement. The policy should include a statement requiring employees to report any incident of harassment to their supervisor, human resources, or other appropriate persons. Make sure to include procedures that allow employees to bypass supervisors who they believe may be a perpetrator and allow complaints to be filed with an individual outside the chain of command. The policy must also instruct supervisors to report any complaints they receive to a designated company representative.
___ Description of investigation procedures. The policy should describe the procedure the employer will follow to investigate harassment complaints. It should provide assurance that the employer will protect the confidentiality of harassment complaints to the extent possible. Employers must have a complaints program under which complaints get a timely response and closure, and investigations must be conducted by qualified people who properly document them.
___ Statement against retaliation. The policy should include an affirmation that the employer won’t tolerate retaliation for making good faith complaints of prohibited harassment or participating in an investigation of a harassment complaint.
___ Assurance of corrective action, including potential discipline. The policy should assure that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred. Include a statement on the potential discipline for harassment. For example, “those employees who are found to have engaged in harassment will be subject to discipline up to and including termination.”
Although many harassment policies include the legal definition of harassment, employers should take care not to base the entire policy on a legal definition. Doing so may result in unintended admissions of unlawful conduct anytime the employer makes a finding that the policy has been violated. The policy should expressly prohibit all forms of offensive or degrading behavior in the workplace, regardless of whether that behavior is sufficiently “severe or pervasive” to constitute unlawful conduct.
And California law currently doesn’t make general abusive conduct (or “bullying”) unlawful, but employers should incorporate anti-bullying information in harassment prevention training and consider including prevention of abusive conduct as part of an effective anti-harassment policy. See Govt C §12950.1.
Want to see a sample policy prohibiting harassment? There’s one in chapter 15 of CEB’s Advising California Employers and Employees, a must-have book for anyone representing clients on workplace issues. And get guidance on liability for sexual and other forms of harassment in CEB’s Wrongful Employment Termination Practice: Discrimination, Harassment, and Retaliation, chap 4.
Other CEBblog™ you may find useful:
- Your Employees Are Probably Doing It, So Have a BYOD Policy
- Get Your Vacation Policy Right, and Then Relax!
- 10 Things to Include in an Employer Meal Break Policy
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