Best Practices in Creating Workplace Harassment Policies
From Hollywood to Washington, D.C., to Sacramento, California, to Any Town, USA, the past few weeks have seen a flurry of sexual harassment claims. These claims highlight the ongoing issues with sexual harassment in the workplace, the fact that sexual harassment remains a widespread problem and the need for employers to take active measures to prevent sexual harassment. Whether these recent developments will lead to an increase in sexual harassment claims or lawsuits for employers remains to be seen. In the meantime, however, the following steps may help reduce the potential for sexual misconduct in the workplace and may effectively address and stop sexual harassment when it occurs.
- Provide a clear policy to all employees, and require that employees read and acknowledge the policy in writing. In California, the Fair Employment and Housing Act (FEHA) and related regulations set forth specific requirements for anti-harassment, anti-discrimination and anti-retaliation policies for covered employers (those who regularly employ five or more people). The requirements include the following:
- The policy must be in writing;
- The policy must list all current protected categories covered under the FEHA, including sex, gender, gender identity, gender expression, sexual orientation, race, religion, etc. (Government Code section 12940(a));
- The policy must state that managers, supervisors, coworkers and third parties with whom employees come into contact are prohibited from engaging in unlawful conduct under the FEHA;
- The policy must create a complaint process to ensure that complaints receive a designation of confidentiality to the extent possible, timely responses, impartial and timely investigations by qualified personnel, documentation and tracking for reasonable progress, timely closure, and appropriate options for remedial actions and resolutions ; and
- The policy must provide a complaint mechanism that allows an employee to complain to someone other than his or her immediate supervisor, such as a designated company representative, someone on a complaint hotline or an ombudsperson. The policy can also identify the California Department of Fair Employment and Housing (DFEH) and the U.S. Equal Employment Opportunity Commission as additional avenues for employees to lodge complaints.
- Communicate, support, abide by and enforce the policies. Employers should create a positive culture from the top down. Company leaders at all levels must reiterate employer policies, foster an environment where employees feel comfortable reporting sexual harassment, and take appropriate action when they observe or learn about occurrences of sexual harassment.
- Provide proper and effective anti-harassment training. Since 2004, California has required that employers with more than 50 employees provide biennial sexual harassment training to all supervisory employees, but all employers are encouraged to provide such training. Under recent regulations, this training must include the following:
- Instruct supervisors of their obligation to report sexual harassment, discrimination and retaliation of which they become aware;
- Cover appropriate remedial measures to correct harassing behavior; and
- Review the definition of “abusive conduct” (“bullying”), explain the negative impact of abusive conduct, specifically discuss the elements of abusive conduct, provide examples of abusive conduct, and emphasize that, unless the act is especially severe or egregious, a single act shall not constitute abusive conduct.
- Foster an environment in which employees feel comfortable reporting sexual harassment, where reports are promptly and thoroughly investigated and where employees do not fear retaliation for reporting.