Both federal law under Title VII and individual state law prohibit unwelcome conduct in the workplace that is based on, or motivated by, the victim’s membership in a protected class, such as gender. And while sexual harassment cases have been widely publicized, an employer can also be liable for harassment based on race, age, disability, and a variety of other protected characteristics. Most recently, for example, we have seen the Equal Employment Opportunity Commission (EEOC) go after companies and public entities, such as city officials and schools, on allegations related to harassment based on sexual orientation.
With respect to sexual harassment, the EEOC states it is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Moreover, harassment does not have to be of a sexual nature; it can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general. Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.
What’s important for organizations and entities to understand is not only do they need to adopt a zero tolerance policy on harassment and discrimination but they also must demonstrate they make every effort to prevent and correct the harassment. This last point was underscored back in 1998 when two cases were brought before the Supreme Court, one of which involved a municipality in Florida. The Supreme Court’s decisions in both cases clearly stated, “An employer that does not have a disseminated sexual harassment policy with a complaint procedure will automatically be liable for sexual harassment by its supervisors. Moreover, the complaint procedure should provide alternative avenues of complaint so that the victim is not forced to complain first to his or her supervisor, who may be the very one committing the harassment.”
Putting an Anti-Harassment Policy into Place
An anti-harassment policy for public entities should include the following:
- A statement of zero tolerance specifying that harassment is prohibited and not tolerated by anyone. The statement should include that harassment by co-workers, customers, vendors, agents, or any other third parties is forbidden.
- A description of conduct that constitutes harassment, including examples that are specific to the employment setting--for example, harassment of female officers by their male counterparts on the police force.
- A complaint procedure whereby employees are required to promptly report harassing conduct they experience, learn of, or witness. A complaint procedure must allow a complaining employee to bypass an allegedly harassing supervisor to make complaints. Depending on the entity’s size and resources, it may make sense, for example, to provide a hotline through which employees can make complaints confidentially and anonymously.
- A statement that the employer will investigate all complaints thoroughly and promptly. Employees should be encouraged to come forward with claims without worry that they will not be believed or that the organization will not respond. All claims must be investigated, even if the employer believes the complaint is made in bad faith.
- A statement regarding the confidential nature of the investigation. An employer must not promise absolute confidentiality but confidentiality only to the extent possible. “Confidentiality to the extent possible” means limiting information to those persons with a “need to know” of the complaint or of the investigation.
- A no-retaliation statement. Any employee may complain about harassment without fear of retaliation. Retaliation against any person participating in a harassment investigation is a separate violation of federal and local law.
- A statement that offenders will be subject to corrective action, including discipline, up to and including termination.
For an organization’s policy to be effective, it must be distributed to all employees. This can be done as part of the on-board materials disseminated to new employees, an integral component of the employee handbook, and via postings in conspicuous places throughout the workplace. Employers should require that employees periodically acknowledge, in writing, their receipt and understanding of the employer’s anti-harassment policy. Also, be sure the policy is reviewed and updated annually to reflect any new federal, state or city laws.
Some states have also imposed additional requirements related to the dissemination and content of the anti-harassment policy. For example, California and Connecticut law requires that employers with 50 or more employees provide at least two hours of anti-harassment training to supervisors. California law also requires that an employer display a poster distributed by the California Department of Fair Employment and Housing that describes the illegality of sexual harassment under state law. Have counsel review all appropriate laws to ensure compliance.
There are other key components in preventing workplace harassment, as well, including supervisory training, which we will review in future articles.
A close examination of the public entity’s insurance product is critical. The program must include robust employment practices liability (EPLI) coverage, designed to provide cover for employment-related claims, such as wrongful termination, discrimination, and harassment. In many cases EPLI can be crafted to be part of the public official liability program. RPS specializes in insuring public entities, including municipalities, public and private schools, states, pools, non-profits and others, and can assist you with protecting your insured against the diverse exposures they face, which could potentially result in costly lawsuits and reputational damage to the entity.