Hardwood Floors August/September 2018

Anti-Harassment Policy (Continued)

state and local discrimination laws, it is the employer’s obligation to have a policy in place that prohibits harassment, a complaint mechanism, and to take prompt and e ective remedial action when it receives a complaint of harassment. e focus of this article is what an employer must do to put in place an e ective policy. In 2016, we received clear guidance from the Equal Employment Opportunity Commission (EEOC) on what employers should include in an anti-harassment policy. See Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace, June 2016, at 80 (h ps://www.eeoc.gov/eeoc/task_ force/harassment/upload/report. pdf ). Also, see sidebar for a critical checklist of elements to include in an anti-harassment policy. Developing an e ective harassment policy is relatively easy, especially with the help of an experienced Human Resources a orney. Taking prompt and e ective action once a report of harassment is received is an entirely di erent ma er – but taking such action is critical to creating an inclusive work environment (and to defending against a harassment claim). Stay tuned for the next issue to learn how. Norma Zeitler is an attorney and partner in the Chicago office of Barnes and Thornburg LLP. The firm serves as NWFA’s legal counsel. For more than two decades, Norma has counseled clients on a variety of employment law matters and litigated employment law cases. She can be reached at norma. zeitler@btlaw.com or 312.214.8312.

The EEOC Report includes a checklist of elements to include in an anti-harassment policy. These elements include the following:  A clear statement that harassment will not be tolerated: is statement should come from the top, and it should make clear that the company prohibits all types of harassment.  An easy-to-understand, non-exhaustive list of prohibited conduct: Everyone knows (or should know) that it is unlawful to condition a job bene t or a job detriment on sex. While an example of that type of conduct certainly should be included, the goal here is to include less obvious conduct, such as repeatedly asking someone out (a er being told no), telling sexually inappropriate jokes, or making sexually inappropriate comments to (or about) a co-worker on social media.  A reporting system that provides multiple reporting avenues: is increases the likelihood that the harassment will be reported. It is essential, however, that each person responsible for receiving such reports (for example, supervisors) be trained on their responsibilities under the policy.  Assurance that the company will undertake a prompt, thorough, and impartial investigation: is will be judged in hindsight if an employee sues for sexual harassment. All too o en, juries conclude that employers did not do enough, or did not act quickly enough. us, it is imperative that employers without experience in conducting these types of investigations seek help from experienced professionals.  An assurance that the ma er will be handled as con dentially as possible: Please note that it is improper to promise complete con dentiality because to conduct a proper investigation, the alleged harasser should be given an opportunity to respond to the allegations (albeit without the investigator disclosing the names of the witnesses). In addition, there o en is a duty to disclose the details of the investigation (for example, to a higher level manager or the Board).  An assurance that the employer will take immediate and proportionate corrective action if it determines that harassment has occurred: Not only should an employer include this assurance in the policy, but the employer must, in fact, do this once the employer becomes aware of harassment. It is important to understand that the e ectiveness of the corrective action also will be judged with the bene t of hindsight.  A prohibition against retaliation: Each of the discrimination laws prohibits retaliation, and the reason is simple – if an employee fears retaliation, harassment will not be reported.  Is wri en using simple words, in a language understood by members of the workforce: It is the employer’s obligation to show when defending against harassment claims that it had a policy, that employees were aware of the policy, and that the employee unreasonably failed to take advantage of the policy. An employer cannot meet this burden if its employees did not understand the policy.

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