HARASSMENT POLICY AND PROCEDURE

by Bob Gregg

Every employer should have a written Anti-Harassment Policy. There are a variety of good policies, so this article will not present a “model.”

Whatever form a policy takes, there are some elements that should be present.

1. Statement that management disapproves of harassment.
2. A definition so that employees know what the policy covers.
3. Commitment to stop harassment.
4. How to raise concerns. This should let employees know that they can go to their management and should provide an alternate designated person(s) for those employees who feel that they cannot raise issues with their direct supervisor.
5. Guarantee of no retaliation for those who use the policy.

The policy should be well publicized and disseminated. A number of court cases have tipped in the employers’ favor because the company had given a copy of its Anti-Harassment Policy to each worker, and posted the policy prominently, and given employee training on harassment, and then enforced the policy.

Complaint Procedure

Having an Anti-Harassment Policy does little good unless it is usable and enforced. There must be a process in place to handle complaints when people use the policy.

In 1998, the United States Supreme Court decided the sexual harassment cases of Faragher v. City of Boca Raton, Florida and Burlington Industries v. Ellerth (from Illinois). The issue was offensive, hostile, harassing environment. Both cases were decided against employers who had harassment policies. The decisions hinged on whether or not the employer had an effective anti-harassment policy and practice.

Have a Policy! Give It Out! Make Sure People Understand It!

The biggest factor in the decisions was “effective policy.” In Faragher, the written policy was not distributed to the work unit. So, the harassed employees had no knowledge of how or where to raise an internal complaint. So, distribute and post the Anti-Harassment policy.

In Ellerth, the plaintiff claimed that harassment complaints had to be made to a person who reported directly to the harasser; so the policy was dead ended at the very source of the problem.

A piece of paper may not be enough. An “effective” policy should be in clear language. It should be orally explained to each new employee in a way that actually reaches those who are illiterate, are not English literate, or who have cognitive disabilities.

Easy Report Process. The Court emphasized that an effective policy and practice is one which makes it easy to report, and does not “cost” the employee (i.e., unpaid time or days off to deal with the process, or arbitration fees).

Alternative Reporting. A policy must have more than one person to report harassment to. Policies that make the victim go to the harassing supervisor, that supervisor’s “buddy,” etc., are designed to “chill” use of the process. So several alternatives are important.

Informal Process

Many Offensive Environment or Work Condition instances can be resolved by giving fair warning or by other informal management action. Instead of magnifying the issue and solidifying people into the “defensive positions” that a formal process creates, informal action often resolves the issue and is much better at getting everyone back to productive work.

An employee’s concern about the romantic advances or sexual innuendos made by a coworker can often be stopped by the direct supervisor just telling the offending person to “cut it out.”

A complaint about an offensive sexual pinup can be solved better by the supervisor simply ordering it to be removed than by creating an “investigation.”

Concerns about racial and ethnic jokes can be resolved by the management stating that these are now seen as “inappropriate” for the workplace, instead of creating a formal process that labels the joke tellers as “the accused.”

Good things about an informal process are that it is quicker, friendlier, and allows people to “back off” instead of “lose.”

Another very good aspect of the informal process is that it can often be done without having to identify the complaining person. Most people are reluctant to raise issues of harassment because they fear a backlash from the people they complained about. The discrimination laws have prohibitions against retaliation, generating additional liability against the employer. A supervisor who announces to the work group that, “Jack has complained about your ethnic and religious jokes, so you have to stop!” is asking for trouble. Instead of stopping the offensive behavior, the supervisor has just created an additional problem of group resentment and retaliation against Jack.

The quickest way to destroy the Anti-Harassment Policy is to have retaliation against those who use it. Once word gets out about how Jack’s situation was handled, no one else is going to be foolish enough to use the policy. The policy becomes a joke. Then instead of getting the chance to find out about and solve problems internally, the problems stew and build until they blow up into major legal liability.

Instead, a manager can remove the pictures or stop the comments or jokes without letting anyone know who raised the issue. It can be presented as a management decision. The supervisors can state that they, themselves, find the behavior inappropriate. This prevents retaliation against the people who use the Anti-Harassment Policy.

In handling minor issues, the direct supervisor can just talk to people and give them fair warning. It is a good idea to note the date and what was done in a way that can be used to later document, if needed, but not in anyone’s personnel records. Even though this is an effort to resolve the issue informally, if it does not work, there will be need to document that the fair warning was given and the behavior continued anyway.

For other than minor issues, the supervisor should inform the person designated in the Anti-Harassment Policy, and the informal action should be coordinated or cleared with that person, to be sure it is indeed an “informed” issue and does not compromise the consistency of discipline done in other parts of the organization.

Formal Process

Quid Pro Quo, “Super Offensive” and some other harassment situations cannot, and perhaps should not, be addressed informally. Investigation and a formal determination will be required.

The formal procedure should be carefully planned out before the Anti-Harassment Policy is publicized. It has significant legal and practical ramifications for the organization and one cannot afford for those assigned to handle formal investigations to be untrained, and unprepared when the first formal complaint arises.¹

Among the issues to consider in a good procedure are:

1. No Conflicts

The most frequent conflicts are with other procedures and personal conflicts. There may already be other employment procedures giving time limits or guaranteeing certain rights for other employees. Especially if a union represents employees, the contract may have a very specific procedure for discipline. Be sure that the Anti-Harassment procedure does not conflict. Be sure that whoever handles harassment investigations is totally familiar with any contract provisions or other personnel policies that give rights to complainants and to those who are accused. Failure to do so can thwart any results of the investigation.

In one academic situation, the student harassment complaint process and the staff’s union contract were at odds. Anytime a student filed a complaint against a staff member, following the steps of the student harassment complaint procedure automatically violated the contract rights of the staff member. So, check out the other organizational processes before giving out the harassment policy; or leave it flexible enough to fit all.

Personal conflicts arise when the person investigating has a close, positive or negative, relationship with the complainant or the accused. This destroys objectivity. Another person should investigate.

2. Get Facts, But Don’t Make Promises (Oral or Procedural)

At the "intake" of a complaint, one has to get all of the facts possible. It is difficult to decide how to handle a situation unless there is a good body of information. A decision on whether to try an informal resolution or start an investigation must be based on a judgment of the facts and circumstances. So do a thorough interview of the employee raising the issue.

Ask the person to make an outline (in advance, if possible) of the issues, chronologi­cal description of incidents, and names of any witnesses. Carefully review with the person for complete understanding of the issue(s).

Ask how the person feels about the situation and ask for their perspective on the situation. This can be very important in deciding whether to do informal resolution or formal investigation. It is also very important information to use in being sensitive in how one approaches the situation following the initial interview.

Do not make promises during the interview. All you are getting is one person’s version and perspective. You cannot make a promise to “solve” something until you find whether it exists, can be solved, or ought to be solved. You can promise that the issue will be examined, but do not commit beyond that. Otherwise, objectivity and neutrality are jeopardized.

Also, do not make time promises. Do not promise to have the issue wrapped up or a decision made by a set deadline. Prompt action is crucial in an internal effort to resolve or investigate harassment cases. These are often highly volatile situations and delay leads to “blow ups” or to the rumor mill clouding the ability to find the real facts. However, artificially set deadlines are also dysfunctional. Just as soon as you promise a deadline, you run into complications: key witnesses are on vacation, other business emergencies take your time. Then you have the pressure to meet the deadline and may “cut corners” on the investigation in order to do so.

The result is a bad process.

Good Anti-Harassment procedures emphasize prompt action. They do not set artificial deadlines.

Good Anti-Harassment procedures are not made in writing as part of the Harassment Policy. There may well be written guidelines for the investigator, but they are not set in concrete as a PROMISE in the Policy. The investigation needs a certain amount of flexibility since almost every situation is a bit different. Preserve that flexibility by not making too many procedural promises.

3. Confidentiality

In addition to harassment, these situations also raise other legal concerns. Labor relation laws on discipline and discharge and civil actions for invasion of privacy and defamation, among others, can be triggered by a harassment complaint and investigation. The person handling the issue MUST be aware of these.

Only talk about the issue with those who have direct, relevant information. Caution each person you talk to NOT to discuss this with others. The practicality of preventing some people from gossiping may be dim. However, if the warning is a standard part of the Anti-Harassment investigation procedure and is given seriously, it can go a long way in preventing organizational liability for anything that “gets out.”

The results of the process, whether formal or informal, should be shared only with those managers and employees who have a significant need to know. Often only top management, the direct supervisor, the complaining person and the accused ever know there was a complaint and the outcome. This confidentiality protects the organization from liability if the person accused feels unfairly harmed. It also protects the person who raised the issue from retaliation and from getting a reputation for “complaining.”

4. Due Process

The person who is accused of harassment has rights. If you have a collective bargaining agreement, it will have a formal set of Due Process rights which must be closely adhered to. In the absence of a contract, even in Employment At Will states, there should be an emphasis placed upon the fundamental fairness concepts of due process.

Basically, this means that the person accused of harassment should have the expectation that:

• They know what they are accused of and that discipline or discharge could result.
• They have an opportunity to tell their side of the story and get the same full attention to the details as does the person who complained.
• They will have a reasonable time frame to put together any information they believe is important.
• The investigator will fully follow up and interview the witnesses they name and thoroughly “check out” their facts and perspective on the situation.
• The decision will be fair and based on valid evidence.

The earlier concepts of neutrality, objectivity, and confidentiality are also important elements of this due process.

If discipline or discharge is a result, you want to be as sure as possible that it has been a valid and fair process.

5. Do Something

If an investigation reveals evidence of harassment, then do something to solve the problem. The main purpose of having an Anti-Harassment Policy and an internal complaint procedure is to allow the employer to have the chance to catch and solve problems before they blow up into lawsuits.

If the company fails to effectively solve problems, it forces employees into the legal process with protracted proceedings and great costs to all. The eventual liability for the employer is multiplied multifold. The early, internal resolution saves all of that hassle, liability, and bad publicity.

So, formally or informally, do something. Take action that matches the severity and harm of the harassment, to remedy the problem.

That “something” may be the informal conciliation of issues. That something may be discipline or discharge of an offending person. That something should include economic remedies for employees who have suffered lost promotions, discharge, or other tangible economic harm from the harassment. The employer must do something reasonable, in light of the harm done, to provide an effective remedy.

The court frequently weighs the action taken, and discipline given, in deciding whether the employer has satisfactorily met its duty to resolve harassment situations or is still legally liable for having failed to effectively do so, and how liable.

Do Not Overzealously Discipline. Some employers in a misguided effort to demonstrate that “We’re serious about harassment!” will give major discipline for a small issue “in order to set a firm example.” Rather than enhance the Anti-Harassment Policy, this sort of overreaction tends to kill it. The general workforce thinks it was a “nutty overkill.”

It certainly “puts fear” into people. Unfortunately, it puts fear into those who are being harassed. Now they are so afraid of the overreaction, of seeing another worker get fired because of their complaint, that they fear coming forward and using the process. So they sit on their misery until it blows up, rather than see someone else excessively disciplined. Excessive action has a “chilling effect” that destroys your policy’s effectiveness. So, use a rational approach; not over-reacting, not under-reacting.

6. Document

Informal resolutions and first warnings can be documented in Notes in a supervisor’s calendar or in a log book or incident file in the manager’s office. If later formal action is based upon failure to change behavior after warning, it will be important to be able to specify when that warning was given.

These should not generally be placed in an employee’s personnel file. That would not be “informal.”

If an investigation and formal decision is done, it should be thoroughly documented in an investigation file. You need a valid basis of information before decisions are made. Only by keeping a file of notes, documents, and reports can you create that basis.

At times, employers have escaped liability by proving that a sincere effort was made to investigate and stop harassment. The primary evidence of that effort was production of an investigation file that had a lot of details.

Often either an unsatisfied complainant or a harasser who received discipline will take the case further, and file a legal action. It may take months or years to come to trial, and all the witnesses then have poor memories. At that point, a good investigative file is crucial for the employer’s defense in reconstructing the facts and refreshing memories. When serious allegations of harassment are made which could result in major discipline of the harasser, it is a good idea to have witnesses sign the notes taken by the investigator and verify their accuracy.

In gathering documentation, it is usually wise not to take original documents from anyone. Make copies of letters, notes, etc., that the employee offers to support their claims. There may later be a legal issue of document custody, alteration, or loss of evidence, and the investigator can avoid being caught in the middle by not taking custody of originals.

Keep legible notes, and organize the file. By the time the file is used in court or arbitration, the person who investigated may no longer be available, and others will have to read and understand it. Even the investigator may not be able to decipher two-year old, poorly written notes and a disorganized mass of paper. The judge will certainly be reluctant to give credence to evidence that cannot be easily read and understood.

Keep this documentation for at least three years. Keep it secure and confidential so that people who were not directly involved in the investigation and decision do not have access.

Monitor and Follow Up

An effective process follows up afterward to make sure behavior has changed and to ensure protection from retaliation. Retaliation is prevented by periodically checking with the complainant after the investigation is over. You can then catch any aftermath issues and resolve them before they blow up into another round of hostility.

Monitor remedies to be sure that changes in environment are made, and stick. Too often the initial environment changes following an investigation, then “slips” back into old patterns of behavior, due to lack of follow-up and reinforcement. So, the original situation is set to reoccur.

Monitor all workplaces once in a while. Remember, the Supreme Court was critical of Boca Raton because “its officials made no attempt to keep track of the conduct of supervisors.” So, harassingly offensive environments could develop and thrive like mildew in the basement; no one ever went down to look. Go look and listen.

Training

All employees, management and non-management should receive harassment training. [Some employers also include contractors’ or vendors’ employees who are routinely on the premises.] That training should include:

1. Explanation of what constitutes harassment.
2. Copy of the policy and explanation of how it works.
3. Opportunity for trainees to discuss and raise questions and concerns about the topic area and the policy.
4. Emphasis on supervisors’ Duty of Care and all employees’ duty to maintain an appropriate environment.
5. Signature by each employee verifying attendance at training and receipt of policy. Place the signature form in each employee’s personnel file.
6. New Employee Training (the most overlooked area). Those who come in later must also get the message.

Training is money saved. Even using an outside consultant, you can train a small workforce for $2,000. A 3,000-person company could be trained for under $40,000. In contrast, the average harassment case costs $70,000 or more if you win. If you lose, it could be $300,000 or more for one case. So, training of all is far cheaper than defending one.

Follow Up On Training

Good training on harassment and Duty of Care is only effective if it is followed up by monitoring and periodic re-emphasis so that it does not “fade.” Many employers have done serious, in-depth anti-harassment training, once. Then the message faded over time; new people came in who did not get the message; things slowly “got back to normal”; then a harassment situation blew up because no one was attuned anymore to prevent, catch and correct.

“Small doses” of re-enforcement are all that is necessary to keep the points in focus and keep your harassment defense effective:

1. Twice a year, put “workplace environment/conduct” on the staff meeting agenda.
2. Clip newspaper articles on harassment or sexist/racist statements made by public figures. Circulate a copy as a reminder (with praise and a “thank-you” to staff for not saying things like that).
3. Copy short synopses of harassment cases from services like BNA or Law Week. Circulate them as reminders and updates on the changing standards or new issues.

These “small dose” practices keep the message from fading, keep employees aware of the internal process, and keep your harassment defense up to par in an inexpensive way.

¹This article presents only an overview. The author has also written more detailed articles on the pitfalls of the formal process entitled, “A Word of Caution - Investigating Employment Matters” and “Fair Discipline.” These works address specific elements of how to do the formal process and how not to get sued for doing your job as the investigator. The author also presents management seminars on this topic.