Is Your Harassment Policy Up-To-Date?

12/4/2012

When was the last time you looked at your harassment policy or the last time you thought about it? If you can’t remember, it’s time to dust it off and review it.

Once again, the number of claims filed with the Equal Employment Opportunity Commission (EEOC) rose in 2011. Although the EEOC will not publish the number of claims filed during the 2012 fiscal year until next year, it is likely that the number of claims being filed hasn’t lessened.

Within the last month, the EEOC has settled two large sexual harassment suits with Sparks Steak House and Albuquerque-Area IHOPs. In Sparks Steak House, the EEOC alleged that 22 male waiters were subjected to sexual harassment by one male manager over an eight-year period. Male-on-male sexual harassment suits are becoming more visible. The alleged conduct included groping, lewd sexual comments and inappropriate touching. The male waiters complained to their managers, but the harassment did not stop. Victims also suffered retaliation for their complaints by being given more difficult work assignments or being suspended. As part of the settlement, the restaurant must pay $600,000 in damages to the victims. Additionally, the restaurant must also establish a reporting hotline for discrimination, distribute an amended policy that prohibits sexual harassment and retaliation to all employees, conduct antidiscrimination training for employees, publish a public notice about the settlement and report all sexual harassment/retaliation complaints to the EEOC.

In Albuquerque-Area IHOPs, the EEOC alleged that one male manager subjected a class of women, including teenagers, to sexual harassment. The conduct included sexual comments, innuendo and unwanted touching. Some women were driven to quit their jobs because of the sexual harassment. The settlement includes $1,000,000 in damages and IHOP must not discriminate or retaliate against its employees. Additionally, IHOP must implement policies and practices that will provide a workplace that is free of sex discrimination and retaliation and IHOP must provide antidiscrimination training and notice of the settlement.

It is likely that 2013 will be another year of increasing discrimination claims. However, with this knowledge, you can prepare an ongoing defense by reviewing your harassment policies, procedures and management training. The EEOC is responsible to enforce federal laws that make discrimination against protected categories (such as race, color, religion, sex including pregnancy, national origin, age 40 or older, disability or genetic information) illegal. Retaliation against an individual for reporting harassment or discrimination based on a protected category is also illegal. In addition to federal laws, you should also be aware of state and local laws. For example, in Michigan marital status and height/weight are also protected categories. These categories should be incorporated into your harassment policy.

In addition to the protected categories, there are several other components that should be included in a harassment policy. A harassment policy should include:
  • To whom the policy applies;
  • A prohibition of harassment;
  • A definition of harassment;
  • Complaint procedures (including multiple people to whom the victim can report);
  • Investigation procedures; and
  • Prohibition against retaliation.
Once you review your policies to make sure they are current, look at your procedures for handling an investigation. Complaints should be handled in a timely manner and by an investigator who has no stake in the outcome. You will receive the best information and evidence if you respond early. You should treat every investigation as though it might end up in court. This means you need to document everything.

As you begin your investigation, talk to the victim; explain that the investigation will be as confidential as possible, but that by necessity some information will be shared with the accused and the potential witnesses. Next, create a witness list. As you talk to the witnesses, you should inform them that they will not be retaliated against for participating in the investigation. As you conduct your interviews, look for inconsistencies. If inconsistencies develop, you may have to make credibility determinations.  Once you complete your investigation, there are several more steps to take, including:
  • Make a decision (if it is a tough one, consult counsel);
  • Inform the parties of the outcome;
  • Take corrective action; and
  • Summarize the results of the investigation.
If you find that some sort of harassment did occur, you should follow up with the victim later to determine how things are going and to make sure that no retaliation occurred. Finally, you should consider whether to provide training to your employees to make sure that they understand your harassment policy and that harassment or discrimination of any kind will not be tolerated.

Whenever you do an investigation you should talk to us. In addition, we recommend that you review and distribute your harassment policy annually. If your policy needs to be updated or you would like harassment training, we can help.

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