Virtually all employers now recognize that the failure to take reasonable measures to prevent harassment and discrimination in the workplace can result in the employer being held liable for the harassment or discrimination. Most employers have therefore established written anti-discrimination and anti-harassment policies. Many employers create such policies and then do nothing else. That failure to do anything else may leave the employer liable for the discrimination and harassment.
A written policy is the basis for any employer’s claim that it took reasonable steps to prevent discrimination and harassment. However, a policy alone is not enough. The United States Supreme Court held in Faragher v. City of Boca Raton, Fla., 524 U.S. 775 (1998) that in instances of supervisor harassment, employer will be vicariously liable for the harassment of a subordinate employee, subject to an affirmative defense “(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Id. at 807.
In the Faragher case, the City had a policy against sexual harassment and discrimination. However, the policy was not widely disseminated at the City’s numerous buildings and work locations. Further, the policy failed to include a provision for employees to bypass the harassing supervisors to make complaints. In fact, the employees complaining of harassment alleged that they were unaware of and had never seen or been provided copies of the anti-harassment policy and there was no evidence of training being conducted relating to the policy or its implementation by front-line supervisors. The Supreme Court held that the City failed to meet the affirmative defense of having exercised reasonable care to prevent the supervisors’ harassing conduct.
Since the Faragher case, employees seeking to bring suit against employers have argued that even where policies are distributed to employees, that merely handing the policy out, without further training, does not constitute “reasonable care” to prevent harassment. Courts are likely to look beyond the mere existence of a written policy in determining if an employer has taken reasonable measures to prevent harassment and discrimination.
The first step in establishing that an employer has taken reasonable measures to prevent harassment and discrimination is to have good policies. The EEOC has stated that a good policy should, at a minimum, contain the following:
- A clear explanation of all prohibited conduct;
- Assurances of protection against retaliation;
- A clearly described complaint process with accessible avenues of complaint;
- Alternatives as to who the complainant may complain to (i.e. not the immediate supervisor);
- A process for a prompt, thorough, investigation; and
- Assurances of immediate and appropriate corrective action.
Every policy should be written in a way that will be understood by all employees in the employer’s work force. Once an employer has developed good policies, it should have the policies reviewed regularly to ensure that they reflect any changes in the law.
Anti-harassment and anti-discrimination policies must be communicated to all employees to be effective. The distribution of the policies needs to be documented, preferably by having each employee sign an acknowledgement of receiving each policy and each update. Employers should also have an active mechanism for renewing employee awareness of the policies. This can be done by sending the policies on a regular basis and whenever they are changed, sending regular e-mails with links to the policies or posting the policies in lunch and break rooms. The name and phone number of the Human Rights Officer and at least one Alternate Human Rights Officer to whom complaints can be made should be posted in each of the employers buildings, in locations easily accessible to employees, such as the employee break room.
In addition to having policies against harassment and discrimination, an employer should provide education to employees regarding the policies, what conduct is prohibited by the policies and what options are available to the employee to deal with harassment or discrimination, including explanations of the different avenues of making a complaint. It should be clear that a complaint may be made to someone other than the employee’s immediate supervisor, since the supervisor may be the subject of the complaint.
Policies and training should make clear, both orally and in writing, that casual comments to immediate supervisors about co-workers does not constitute a complaint under the policy. This is of particular concern in law enforcement departments where paramilitary “chain-of-command” frequently gives employees the impression that they are required to report everything to their immediate supervisors first. Both employer and department policies should clearly set out, in writing, that in instances of harassment or discrimination, the city or county’s overall policy for reporting, generally requiring a report to the Human Rights Officer or Alternate Human Rights Officer, trumps the departmental “chain-of-command.”
An employer must also train managers and supervisors on how to prevent harassment and discrimination, how to recognize such conduct, how to follow and enforce the policies and how to respond to complaints. Supervisors should be instructed to address or report complaints regardless of whether they are designated to take complaints and regardless of whether a complaint was framed in a way that conforms to the designated complaint procedures. Employee attendance at education and training should be recorded in the employee’s personnel file.
Beyond developing good policies and training employees and supervisors on the policies, an employer must respond promptly, thoroughly and appropriately when complaints are made. All complaints and steps to enforce the policies must be thoroughly documented to demonstrate that an employer takes reasonable measures to prevent harassment and discrimination. Documentation of complaints and the action to address them should be retained, even if the matter is settled, to establish in the event of future instances that the employer has a track record of responding appropriately.
Finally, management must demonstrate that it is committed to preventing discrimination and harassment and show that it supports the steps taken by the employer. This can be done by upper management attending the training sessions and ensuring that supervisory employees who violate the policies are appropriately disciplined. The failure of top management to support anti-discrimination and anti-harassment can undermine the other efforts made by an employer.