Top 5 Components of a Harassment Policy

This month we have been discussing harassment policies; why having one is important, what language to avoid in an anti-harassment policy, and the dangers of having an overly broad harassment policy. There are many directions you can go with your organization’s anti-harassment policy, but regardless of size, industry, or location, there are a few vital components that every harassment policy should include.

Zero Tolerance

Often a separate component of a manual/handbook, there should always be a statement that clearly states that the company will not tolerate any incidents of harassment, and any such situations will be handled in a timely and fair manner. When it comes to harassment there are many “gray areas,” you want to make certain that this is not one of them and all employees know what lines are not to be crossed.

Definition of What is not Acceptable Behavior

Provide your employees a clear definition of what is/is not tolerated and provide examples of what is not deemed acceptable behavior. A vague description is one of the worst things you can have in your policy, potentially allowing employees to perceive what is not acceptable behavior rather than giving them a black and white clarification.

Employee and Manager Duty

Employees and managers alike have responsibilities when it comes to reporting harassment in the workplace. Employees who have witnessed or been subject to harassment have a duty to report the incident(s) in a timely an accurate manner. Managers and HR have a duty to follow the proper reporting procedures to ensure that necessary investigations and disciplinary action is administered in an equally appropriate manner.

Grievance/Complaint Procedure

Every step of this process should be clearly laid out for both employees and managers. From start to finish, it is important that all affected parties know what they are expected to do, what the process for any investigation will be, and how such situations will be rectified.

Confidentiality and Retaliation

To sum up your harassment policy, ensure employees that any reports of harassment will be kept confidential, as far as reasonably possible. Your employees should feel safe and comfortable coming to you with any reports of harassment. Additionally, state that any bona fide complaint will not result in retaliation, and retaliation will not be tolerated.

The Dangers of an Overly Broad Policy

We all know the importance of having a harassment policy in place; a well written and clear policy that is regularly communicated ensures that all employees and managers are aware of what is and is not acceptable behavior, is aware of the consequences for violating the policy, and know what the steps are for filing a complaint.

A common question that arises when drafting a harassment policy, is how specific do you need to be? In last week’s blog post, we discussed potential issues that may arise when your harassment policy requires specific behaviors that, according to the NLRB, may restrict an employee’s Section 7 rights. Just as important as being too specific, potentially infringing on an employee’s rights, is the danger of being overly broad.

A harassment policy that is too vague can lead to misinterpretation of what is not acceptable behavior, confusion as to what an employee can/should do when they have a grievance, and can result in managers who are uncertain as to how to effectively manage a situation of harassment. A broad policy is useless to employers and employees alike, and can result in a lack of consistency in how situations are handled in the event of a harassment complaint.

Be simple, but be clear and direct in your policy. The less you allow for interpretation and perception, the less likely are the chances that your employees will misinterpret and violate the policy. Without clear expectations, you run the risk of your employees wandering into grey territory, into the dangerous zone of what may be deemed unlawful.

Clearly define certain terms such as “severe” as what one person may deem a simple conversation another may view as harassing behavior. Having clear expectations in place ensures that your organization is protected and is your first line of defense when dealing with a harassment case.

Follow along next week as we discuss the top components that every anti-harassment should have, including some of the important expectations that should be clear and concise.

The NLRB and Harassment

Many of us have heard that the National Labor Relations Board (NLRB) has been taking a more aggressive stance in the last few years on private employer’s policies.  In particular, they are looking for policies that contain “any language” that might have a possible chilling effect on an employee’s exercise of their right to engage in “protected concerted activity” under Section 7 of the National Labor Relations Act (NLRA).

Harassment policies often contain requirements that employees treat others (including customers) with respect and refrain from rude, disrespectful, offensive, intimidating, or threatening behavior.  In the context of a business, we try and provide a safe place for all employees to work.  However, the Board has interpreted these policies as broad and potentially restricting an employee’s Section 7 rights under the NLRA. These interpretations by the Board are often narrowed down to just a single statement within a broader harassment policy or the policy as a whole.  For example, the NLRB has found the following policies unlawful:

  • A rule prohibiting “making false, vicious, profane or malicious statements toward or concerning the hotel or any employee;”
  • Verbal comments or physical gestures directed to others that exceed the bounds of fair criticism and behavior that is counter to promoting teamwork;
  • Behavior that is disruptive to maintaining a safe and healing environment or that is counter to promoting teamwork;
  • Prohibiting “loud, abusive, or foul language;”
  • Discipline for “the inability or unwillingness to work harmoniously with other employees;”
  • Prohibiting negativity, any type of negative energy or attitudes;
  • Engage in any activity which could harm the image or reputation of the company; and
  • A rule prohibiting “negative conversations about employees or managers.”

Each of these types of statements have been interpreted by the NLRB as having a “chilling” effect on Section 7 rights.

When drafting your harassment policies, it is critical that you take into consideration the NLRB’s rulings and balance their requirements with the federal and state requirements.  Take the time to have your policies reviewed or written by human resource experts or legal counsel.

The good news is the Equal Employment Opportunity Commission (EEOC) issued an 88-page report called “Select Task Force on the Study of Harassment in the Workplace” in which the EEOC appears to push back at the NLRB on workplace harassment policies (see page 38 of the full text report).

Stay tuned to next week’s blog post where we talk more about what the EEOC recommends in anti-harassment policies.

Why a Harassment Policy?

Janette is a manager at a small, locally-owned hardware store. Over the past few years, she has behaved inappropriately with her male employees, making sexually derogatory remarks towards them, constantly attempts to get them to go out on dates with her, and slaps them on the backside at work.

The Company’s handbook is roughly 10 pages long, and primarily focuses on employee benefits. It lacks a harassment policy or any section detailing expectations for appropriate conduct. Neither Janette or her employees have been trained on what is/is not acceptable behavior, nor have they been provided with the resources to file a complaint. Who is at fault?

Harassment comes in many, many forms. Sexual harassment is one of the most popularly discussed types of harassment, but harassment pertaining to age, race/color/origins, religions, disability, that can manifest through discrimination, retaliation, or the creation of a hostile work environment are also common types of harassment that are prevalent in today’s workplace.

Aside from the plethora of legal reasons to have a harassment policy in place (e.g., certain states require anti-harassment training for managers, various state and federal laws, Title VII’s ban on sexual discrimination, the EEOC strongly recommends having one in place, etc.), the primary need to have a strong anti-harassment policy in place is to minimize risk and liability to your organization.

With a solid policy in place, your employees know what is expected of them, what behaviors will not be tolerated, what the consequences of such actions will be, will know what steps to take (complaint and grievance procedures) in the event of a harassment situation, and will have the resources necessary to prevent such instances from occurring in the first place.

Follow along this month as we address various harassment-related topics including: how the NLRB plays a role in harassment policies, the dangers of having an overly broad harassment policy, and the components you need for a strong harassment policy for your organization.