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It's not just sexual harassment anymore
From Smart Workplace Practices newsletter
The Equal Employment Opportunity Commission (EEOC) says the standards and guidelines for employer liability in sexual harassment cases now apply to all forms of harassment - based on race, age, disability, or national origin, for example.
The Supreme Court ruled in two cases in 1998 that an employer can be held "vicariously liable" for sexual harassment of a subordinate by a supervisor (and now for any form of harassment, says the EEOC) whenever there has been a "tangible employment action," such as firing, demoting, or relocating of the harassed employee.
The new EEOC guidelines, released in mid-1999, expand the list of "tangible employment actions" to include loss of promotion, adjustments in benefits or pay, or undesirable changes in work assignments, even if salary remains the same.
Undoubtedly, the expanded guidelines will cause more employees to try for a harassment claim - with a longer list to "tangible employment actions" and many more grounds for which to claim harassment.
What can you (the employer) do for a defense against harassment claims? Begin with a written policy against sexual and all other forms of harassment, including a clear explanation of prohibited conduct. Provide every employee with a copy of your policy and an explanation of your complaint procedure.
Make clear in your policy that the employer will not tolerate harassment based on such factors as race, sex, religion, national origin, age, or disability, or harassment based on opposition to discrimination or participation in complaint proceedings. The policy should also state that there will be no retaliation against anyone who complains of harassment or who participates in an investigation.
Emphasize that employees can go to someone other than their supervisor with their complaint, and ensure that these individuals are accessible. Also instruct supervisors to report complaints of harassment promptly.
Do prompt, thorough, and impartial investigation. The alleged harasser should not have any direct or indirect control over the investigation. The investigator should interview the employee who complained of harassment, the alleged harasser, and others who could reasonably be expected to have relevant information. For examples of specific questions to ask, visit the EEOC website: www.eeoc.gov/docs/harassment.html.
Take steps to make sure that harassment does not continue. You might make scheduling changes to avoid contact between the parties or place the alleged harasser on non-disciplinary leave with pay pending the conclusion of the investigation.
Post
harassment
poster in every
work area
A Harassment Poster is available from Employers of America...to help you comply with Supreme Court decisions and EEOC guidelines.
This poster
lists the most current information you must tell your employees
about illegal harassment...
to make sure you have a legal defense. Your best protection begins
with posting one of these posters in each department and each work
area.
The two-color poster is 11x17 inches.
There are no "safe harbors" for employers based on the written content of policies and procedures. Even the best policy and complaint procedure will not serve as a defense if you fail to implement its process effectively.
If, for example, the employer has an adequate policy and complaint procedure and properly responds to an employee's complaint of harassment...but management ignored previous complaints by other employees about the same harasser...then the employer did not exercise reasonable care in preventing the harassment.
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