Reports of workplace harassment have dominated the news recently but despite that high-profile publicity, many employers may still be short on specifics of what constitutes harassment or how to create an effective policy to keep workplace harassment from happening in their business.
“Workplace harassment” is defined as any unwelcome verbal or physical conduct based on protected bases, which include race, religion, gender, national origin, age (40 and over), disability and sexual orientation.
“Unwelcome conduct” is conduct the employee did not solicit or invite, and which they regarded as undesirable. Examples include, but are not limited to, sexual advances, pressures for dates, slurs, comments, jokes, innuendos, threats, inappropriate gestures, pictures, graffiti, slang expressions and physical actions such as inappropriate touching or beatings.
Harassment can be conduct that culminates in a tangible employment action such as hiring or firing, promoting or failing to promote, reassignment and other actions. It can also be conduct that is sufficiently severe or pervasive that it results in a hostile work environment.
It is important for employers to understand that they may be liable for inappropriate conduct whether that originates with supervisors, co-workers or non-employees. It is also important that employees who are affected by the harassing conduct know they must explicitly or implicitly communicate that the conduct is unwelcome. Further, they cannot be an active participant in the behavior.
While employers cannot, in practical terms, control every word spoken or action taken at every moment, they do have a “Duty of Reasonable Care” with regard to harassment, and that is satisfied by establishing, disseminating and enforcing an anti-harassment policy and complaint procedure. They must also take other reasonable steps to prevent and promptly correct harassment that occurs.
An effective anti-harassment policy has several important elements.
It should start with a policy statement that is clear and precise, such as, “XYZ Company does not permit harassing conduct by anyone in the workplace. It is the policy of XYZ Company to maintain a work environment free from the harassing conduct described above.”
It should also state how the company will limit harassment, such as treating it as misconduct, even if it does not rise to the level of harassment as defined by law. It could also state that the company will act before the conduct is so pervasive and offensive as to create a hostile work environment.
The next point is the company’s statement that retaliation will not be tolerated against any employee making a good faith report of harassing conduct.
The company’s policy should define the roles and responsibilities of management members, supervisors, employees, the Human Resources department and other interested parties.
Its policy should identify the protected bases, define what constitutes harassing conduct and identify impartial plans to complain about harassment. It should also explain what should be done once harassment is reported, who should be notified, how promptly, and who will perform the subsequent inquiry into the claim.
It should explicitly cover harassment by anyone in the workplace, including supervisors, co-workers and non-employees. It should encourage employees to report harassment before it becomes severe or pervasive. Finally, an effective anti-harassment policy needs to be committed to in writing and be well disseminated.
In cases of alleged harassment, a company can be liable if it knew or should have known of the harassment and failed to take immediate action and respond appropriately. A company can be assumed to have known if the victim complained about the harassment, the conduct occurred in the presence of a supervisor or the conduct is widespread.
A company can be held liable unless both elements of an affirmative defense are met. Specifically, the company must have exercised reasonable care to prevent and promptly correct the harassment, and the complainant employee unreasonably failed to take advantage of any preventative or corrective opportunities offered by the agency or to avoid harm otherwise.
For help creating your company’s anti-harassment policy, contact the Economic Development Collaborative-Ventura County. Conveniently located in Camarillo, California, we’re here to help!