anti-harassment policies

​Today’s social media climate should help remind employers that they must be cognizant of the impact claims of sexual or other harassment can have on their business and reputation. To protect themselves and their businesses, employers should review their handbook and the harassment policies and procedures that they are currently enforcing. Employers should also implement a process for monitoring legislative changes, as it is likely that new laws and standards around harassment will be implemented soon.

When reviewing harassment policies, there are several items that an employer should consider. The most important is to remember that the types of harassment that can lead to liability extend beyond conduct that is sexual in nature. According to the Equal Employment Opportunity Commission (EEOC), there are two types of sexual harassment claims: “quid pro quo” and “hostile work environment.” The EEOC provides guidance on defining harassment and establishing liability that can be helpful for employers.

Although the EEOC can provide great information and guidance, employers should be cautious of using the legal terminology and definitions that these documents contain. If your policy language isn’t easily understandable or doesn’t provide context, it may be deemed inadequate. When developing anti-harassment policy language, it is important to clearly state what prohibited behaviors look like.

For harassment to be illegal, it must be “severe and pervasive.” In developing anti-harassment policies, the goal should be to stop and correct these behaviors before they rise to that level. For employees to understand what is expected of them, I recommend that employers include language such as “the following behaviors are unacceptable and therefore prohibited, even if not unlawful.” This helps to clarify that even if a certain behavior isn’t actually illegal, it is still prohibited by your organization. Employers should also include language that explains that prohibited harassment goes beyond just sexual. Harassment can occur in many forms and circumstances.

• The victim as well as the harasser can be a woman or a man. The victim does not have to be of the opposite sex.
• The harasser can be the victim’s supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
• The victim does not have to be the person harassed but can be anyone affected by the offensive conduct.
• Harassment can be based on any number of different factors including disability, sexual orientation, appearance, pregnancy, etc.

Employers should ensure that their policy language also indicates that these expectations apply to both employees and non-employees and are also in effect when the employee is not working but engaged in activities with other staff members, such as company events, whether those events are on company property or not.

It is also important for employers to make it clear that the company’s anti-harassment policies apply not only to the spoken or written word but also to e-mail, text messages, and social media posts. There have been many instances in recent news of cases of harassment involving text messages and social media.

Consider adding verbiage that states that the harassment policy applies to social media posts and online commenting.

Of course, having a thorough anti-harassment policy is just half the equation. Having effective complaint and investigation processes are also essential to protect your business.
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For more information on anti-harassment policies and how to enforce them, it would be wise for employers to consult with an employment attorney. To add anti-harassment policies to your handbook, or if you don’t have an employee handbook, contact Maria Novak 610-405-0633.

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