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Workplace Harassment Investigation and Defense

        Harassment claims have expanded in scope as laws and the regulations interpreting those laws have been amended to expand the number of “protected characteristics” which can support a legally viable discrimination or harassment claim. In addition to gender, race, national origin, disability, age, and religion, there are federal, state, and local laws protecting employees from discrimination on the basis of sexual orientation, familial status, veteran’s status, genetic information, and more. The term “hostile work environment,” which used to exist solely in a legal context, now is used as common workplace language to describe any situation in which an employee does not feel comfortable. Social media has invaded the workplace, with employee “private” or “off hours” communications creating problems for employers. With a new generation of employees entering the workforce, many of whom have very different perceptions of “harassment” from those addressed in long-standing policies, it is critical that employers seize the opportunity to revise their anti-harassment policies to ensure that expectations are clear and everyone in the workplace understands just what is and is not harassment. ELDI takes a 3-step approach to evaluating and upgrading employer anti-harassment policies.

PART 1: UPGRADE THE COMPANY’S ANTI-HARASSMENT POLICY

        A few basic upgrades can substantially strengthen the company’s policy and protection of the employer:

  1. Cover all forms of harassment in one policy: Anti-harassment policies should cover more than sexual harassment and should include the many other bases of discrimination which are prohibited by law including race, age, disability, ethnicity, religion, etc. Employers who have an anti-sexual harassment policy but not a policy prohibiting harassment on other protected bases simply are lacking the protection needed to address the majority of workplace harassment and discrimination claims.
  2. Eliminate “legal” definitions and terms: Employers lose the protection of their anti-harassment policy if employees can claim credibly that they could not understand the policy and did not know what it was, what it covered, or how/when the policy applied to them. Consider including “real life” examples of unacceptable conduct in the context of your company’s work and culture. The examples do not have to be specific or explicit, but should be enough to give the reader a fair understanding. A policy stating that “posting explicit pictures, using hate speech, telling jokes which make fun of someone on the basis of their ethnicity is prohibited” gives examples which “paint a picture” without themselves violating the policy or making employees uncomfortable.
  3. Do not focus solely on what is legally prohibited: By the time harassment becomes legally actionable, the harassment either needs to be “pervasive” or “severe” and by that time, the harassment undoubtedly has had a major negative impact on the workplace. Anti-harassment policies which focus solely on what the legal standard of “harassment” is when read to a jury at the end of a court trial fail to protect employers who want to try to prevent claims from arising and hurting their business. There are many forms of conduct which, in an isolated incident, do not amount to a legal claim of harassment but are not acceptable and those “isolated” incidents, if those incidents are not dealt with promptly and effectively, will become more pervasive and later constitute an environment of “pervasive harassment” before the employer realizes what has happened. Demeaning, hostile, “hateful,” or other forms of conduct or remarks meant to harm or insult another are not acceptable regardless of whether the legal standard of harassment can be proven, and an effective anti-harassment must be clear on that point.
  4. Examples of sexual harassment remain important: Including examples of “classic” sexual harassment still should appear in an anti-harassment policy (i.e. requiring an employee to submit to sexual advances in order to get a promotion), but the policy also should include prohibitions against conduct which could result in a hostile work environment such as sexual banter, sexual jokes, texting inappropriate pictures, and inappropriate touching. Ensure that the policy is gender neutral.
  5. Ensure that the scope of prohibited conduct is sufficient to protect the company: Make sure that the anti-harassment policy prohibits wrongful conduct by any representative of the company regardless of title and also applies to third parties whom interact with the company such as vendors and clients.
  6. Conduct outside of work must be covered: Conduct with co-workers outside of work can quickly pervade the workplace and create major liability for employers. Anti-harassment policies must cover conduct at company-sponsored social events and social media posts which would violate the policy if said in the workplace. If social media posts can be seen by co-workers, even if the social media account is otherwise marked “private,” those posts and their consequences can infect the workplace. Anti-harassment policies should apply to social media posts which are about or may be seen by employees, customers, and clients. At a bare minimum, such a policy puts employees on notice that their social media posts may be the basis of discipline when their “private” posts create a problem at work.

PART 2: STRENGTHEN THE ANTI-HARASSMENT COMPLAINT PROCESS

       Equally as important as the anti-harassment policy is the process which employees are expected to follow if the employee feels that he/she is being subjected to or has witnessed harassing conduct. A few reminders:

  1. Clarify who can raise a complaint: If harassing conduct is occurring in the workplace, any witness to that conduct must be able to bring the complaint. The person being harassed may be embarrassed or fearful of retaliation and the longer the conduct occurs, the worse the conduct will become and the greater the risk to the company. The policy must be clear that anyone who is subjected to, witnesses, or otherwise becomes aware of conduct occurring which violates the policy should report the conduct.
  2. Have multiple ways to report a complaint: Effective policies must give employees several alternative persons to whom employees can report improper conduct. Employees must be able to report to their supervisor, a human resources representative, any other member of management, etc., at the employee’s discretion. Consider having an anonymous “tip line,” message board, or email address where complaints can be reported. If employees feel that they cannot report the conduct because they are forced to report to the person involved or the person who let the conduct continue, the employee will simply say that the policy is “ineffective” and the employer will lose the protection of the policy.
  3. Investigate complaints in a fair manner: Investigate all sides of a complaint, and make it clear in the policy that if the company determines that a complaint is knowingly false, appropriate action will be taken. It is important that the company protect the rights of all parties to a complaint and all employees and witnesses should feel that they are treated fairly in the investigation of a complaint. The company may not always take the action an employee might want in response to a complaint, and it is important that the employee feels that the complaint was taken seriously regardless of the outcome.
  4. Take strong corrective action: The policy must state that appropriate corrective action will be taken, and taken promptly, if inappropriate conduct occurred. Regardless of whether the action meets the legal definition of harassment, inappropriate conduct should be prohibited and acted upon. The policy should state that violations of the policy will result in “appropriate” corrective action. That action could include termination of an employee, termination of a vendor or client relationship, or other action as determined by the circumstances.

PART 3: HAVE A STRONG PROHIBITION AGAINST RETALIATION

        Even if a complaint of harassment is determined to have no merit and no action is taken in response to the complaint, if an employee is subjected to retaliation for having made the complaint, the company can be subject to the same, if not greater, liability. The main reason that employees cite for not reporting improper conduct is the fear of retaliation. An anti-harassment policy must have a strong anti-retaliation provision to begin to combat that excuse for non-reporting, and the company must put that anti-retaliation policy into practice. A few critical points:

  1. The anti-retaliation provision must protect not just the employee subjected to the improper conduct, but also witnesses and anyone participating in the investigation of the complaint.
  2. The policy must not only protect an employee from retaliatory termination but also from other forms of less obvious adverse consequences such as isolation in a department, the supervisor’s refusal to meet with an employee, removal from an important committee, or “bad mouthing” the employee whether at work, with clients, or on social media.
  3. The policy must state that even if the underlying complaint does not have merit or result in discipline, it is not acceptable for a supervisor or any other company representative to engage in retaliation.
  4. The policy must state that employees and witnesses are b giving the employee/witness the discretion as to how to report in a manner which makes the employee/witness most comfortable.
  5. The anti-retaliation policy must be communicated to all involved including accusers, the accused, and witnesses throughout the investigation of a complaint. In addition to stating the anti-retaliation policy in the anti-harassment policy, it is critical that the person conducting the investigation of an harassment complaint communicates to every individual participating that retaliation is not tolerated. Supervisors must understand what constitutes retaliation so that they take care not to engage in retaliation without realizing it. Supervisors who are accused of harassment may want to avoid a reporting employee so as to avoid further accusations but doing so may be seen as retaliation. In addition to protecting employees and witnesses, supervisors must protect the company and themselves.

HOW ELDI CAN HELP:

        ELDI helps employers get their anti-harassment policies into compliance, and certainly the best practice is to get a strong policy in place immediately. Sometimes problems arise before an employer understands or is able to have its anti-harassment policy updated. Whether your anti-harassment policy is new, outdated, or non-existent, ELDI helps employers conduct the investigation of an harassment or discrimination claim so that the employer/supervisor can stay out and protect the employer/supervisor from additional allegations. The “universe” of harassment and discrimination claims remains full of pitfalls for employers and when faced with a claim, the best thing that employers can do is take a step back and have a third party take over. ELDI will conduct a fair investigation, provide the employer with a summary of its investigation, and make recommendations on how to proceed which are balanced and take into account both the risk of liability and an employer’s business needs. ELDI will help you build a strong foundation for an effective defense and minimize tremendous risk. Proactive, pragmatic problem solving is the key to ELDI’s approach.