In 1998, the United States Supreme Court issued its Faragher/Ellerth line of decisions articulating a new standard for holding employers responsible for the creation of a hostile work environment. Since that time, employers have steadily heeded the call of the Supreme Court for employers to develop harassment policies. It appears, however, that some employers are stopping there and falling short in developing a full harassment prevention and correction protocol.
Remember that the Supreme Court acknowledged that an employer cannot roam the halls of the workplace 24 hours a day searching for violators of federal civil rights laws. Rather, boiled down to its essence, the Supreme Court made clear that it expects employers to do the following as a part of its harassment prevention and correction protocol.
- Maintain a Harassment Policy and Complaint Procedure (covering sexual harassment as well as harassment based on race, religion, age, disability, etc.);
- Distribute the Harassment Policy and Complaint Procedure to all employees;
- Make sure the Complaint Procedure allows for reports to someone other than the harasser;
- Train your employees on the Policy;
- Investigate complaints of harassment and reach a conclusion;
- Communicate the conclusion to the complainant; and
- Implement measures to correct any instances of harassment.
After reading this article, evaluate your harassment prevention and correction protocol and compare it against the above factors. If you see a factor is missing, work on putting measures in place to fix it. If, for instance, you do not currently conduct harassment training, find 30 minutes every six months to remind employees of your policy and make sure you document the “training.” Review your complaint procedure. Does it have a specific reporting mechanism in place for reporting concerns and who is designated to receive the complaints? In answering this question, employers should avoid complaint procedures that simply tell the employee to report any concerns to “their supervisor or any other member of management.” Rather, complaint procedures ideally should identify specific job positions as the designee for harassment complaints, ideally individuals with human resource experience.
For instance, a model complaint procedure could say “If you feel that you have experienced or witnessed harassment or discrimination of any type, you are to notify immediately (preferably in writing within 24 hours) the Company’s Human Resources Director at the Corporate Office in Atlanta, Georgia. If you are not contacted promptly about your complaint, are not satisfied with the response by the Human Resources Director or are not comfortable speaking with this person, you are to notify immediately the Chief Financial Officer and the President of the Company via telephone and certified U.S. mail at the Corporate Office in Atlanta, Georgia.”
The reality is that employers cannot guarantee a work environment free of harassing behavior. But employers can guarantee themselves a much stronger defense to a hostile work environment claim by implementing a comprehensive harassment prevention and correction plan.