Employer Defense to a Harassment Claim

The EEOC has started to take very aggressive action against employers for poor or unenforced harassment policies. Below is a list of items that outline the reasonable care that employers should take in enforcing their harassment policies, as a potential defense to an employee’s harassment claim.

An Employer’s Duty

For an employer’s anti-harassment policy to be effective, it should generally have the following features, at a minimum:

• the policy should define what conduct is prohibited
• the policy should be widely disseminated
• the policy is comprehensible to workers, including those who the employer has reason to believe might have barriers to comprehension, such as an employee with limited literacy skills or limited proficiency in English
• the policy should require that supervisors report harassment immediately when they are aware of such conduct
• the policy should offer multiple avenues for reporting harassment, thereby, allowing employees to contact someone other than their immediate supervisor(s)
• the policy should clearly identify accessible points of contact to whom reports of harassment should be made and include their contact information
• the policy should explain the employer’s complaint process, including the employees anti-retaliation and confidentiality protections

For a complaint process to be effective, it should generally have the following features, at a minimum:

• the process should provide for a prompt and effective investigation, as well as corrective action
• the process should provide adequate confidentiality protections
• the process should provide adequate anti-retaliation protections

For training to be effective, the training should generally have the following features, at a minimum:

• the training should explain the employer’s anti-harassment policy and complaint process, including an alternative dispute resolution process, and confidentiality, as well as anti-retaliation protections
• the training should describe and provide examples of prohibited harassment, as well as conduct that, if left unchecked, might rise to the level of harassment
• the training should provide information about an employees rights if they experience, observe, become aware of, or report conduct that they believe may be considered harassment
• the training should provide supervisors and managers information about how to prevent, identify, stop, report, and correct harassment, such as actions that can be taken to minimize the risk of harassment, and clear instructions for addressing and reporting harassment that they observe, that is reported to them, or that they otherwise become aware of
• the training is tailored to the workplace and workforce
• the training is provided on a regular basis to all employees
• the training is provided in a clear, easy-to-understand style and format

Even the best anti-harassment policy, complaint procedure, and training will not necessarily establish that the employer has exercised reasonable care to prevent harassment. In view of the legal complexities that involve a claim of harassment, an employer should consult with an employment law attorney in order to establish appropriate harassment guidelines and reporting procedures.

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