In the wake of the recent sexual harassment scandals, the Equal Employment Opportunity Commission (EEOC) recently published new guidance materials (entitled “Promising Practices for Preventing Harassment“) which provides employers with numerous suggestions regarding best practices employers can adopt to help prevent workplace harassment (including sexual harassment).
Highlighted in this new publication is the importance of employers developing strong anti-harassment policies and providing regular anti-harassment training to all employees (with a additional recommendation that employers provide their managerial employees with more detailed training).
With respect to anti-harassment policies, the EEOC recommends that employers develop an anti- harassment policy that is comprehensive, easy to understand, and regularly communicated to all employees.
This policy should include the following elements:
- A statement that the policy applies to employees at every level of the organization, as well as to applicants, clients, customers, and other relevant individuals;
- An unequivocal statement that harassment based on, at a minimum, any legally protected characteristic is prohibited;
- An easy to understand description of prohibited conduct, including examples;
- A description of any processes for employees to informally share or obtain information about harassment without filing a complaint;
- A description of the organization’s harassment complaint system, including multiple (if possible), easily accessible reporting avenues;
- A statement that employees are encouraged to report conduct that they believe may be prohibited harassment (or that, if left unchecked, may rise to the level of prohibited harassment), even if they are not sure that the conduct violates the policy;
- A statement that the employer will provide a prompt, impartial, and thorough investigation;
- A statement that the identity of individuals who report harassment, alleged victims, witnesses, and alleged harassers will be kept confidential to the extent possible and permitted by law, consistent with a thorough and impartial investigation;
- A statement that employees are encouraged to respond to questions or to otherwise participate in investigations regarding alleged harassment;
- A statement that information obtained during an investigation will be kept confidential to the extent consistent with a thorough and impartial investigation and permitted by law;
- An assurance that the organization will take immediate and proportionate corrective action if it determines that harassment has occurred; and
- An unequivocal statement that retaliation is prohibited, and that individuals who report harassing conduct, participate in investigations, or take any other actions protected under federal employment discrimination laws will not be subjected to retaliation.
The EEOC further recommends that employers provide their anti-harassment policy to its employees in several different ways, including:
- At hire;
- In the employee handbook;
- At any anti-harassment training; and
- Posting the policy in the workplace.
Finally, the EEOC recommends that employers translate the policy into all languages commonly used by employees.
With respect to training, the EEOC recommends that employers provide regular interactive, comprehensive anti-harassment training to all employees.
The EEOC further recommends that an employee-level training program should the following elements:
- Descriptions of prohibited harassment, as well as conduct that if left unchecked, might rise to the level of prohibited harassment;
- Examples that are tailored to the specific workplace and workforce;
- Information about employees’ rights and responsibilities if they experience, observe, or become aware of conduct that they believe may be prohibited;
- Encouragement for employees to report harassing conduct;
- Explanations of the complaint process, as well as any voluntary alternative dispute resolution processes;
- Explanations of the information that may be requested during an investigation, including: the name or a description of the alleged harasser(s), alleged victim(s), and any witnesses; the date(s) of the alleged harassment; the location(s) of the alleged harassment; and a description of the alleged harassment;
- Assurance that employees who report harassing conduct, participate in investigations, or take any other actions protected under federal employment discrimination laws will not be subjected to retaliation;
- Explanations of the range of possible consequences for engaging in prohibited conduct;
- Opportunities to ask questions about the training, harassment policy, complaint system, and related rules and expectations; and
- Identification and provision of contact information for the individual(s) and/or office(s) responsible for addressing harassment questions, concerns, and complaints.
With respect to managerial-level anti-harassment training, the EEOC recommends that these employees receive more in-depth training that also includes the following elements:
- Information about how to prevent, identify, stop, report, and correct harassment, such as:
- Identification of potential risk factors for harassment and specific actions that may minimize or eliminate the risk of harassment;
- Easy to understand, realistic methods for addressing harassment that they observe, that is reported to them, or that they otherwise learn of;
- Clear instructions about how to report harassment up the chain of command; and
- Explanations of the confidentiality rules associated with harassment complaints;
- An unequivocal statement that retaliation is prohibited, along with an explanation of the types of conduct that are protected from retaliation under federal employment discrimination laws, such as:
- Complaining or expressing an intent to complain about harassing conduct;
- Resisting sexual advances or intervening to protect others from such conduct; and
- Participating in an investigation about harassing conduct or other alleged discrimination; and
- Explanations of the consequences of failing to fulfill their responsibilities related to harassment, retaliation, and other prohibited conduct.
It is recommended that all employers review these new guidance materials and consider adopting most, if not all, of the EEOC’s recommended best practices.