Employment Law: Review Your Anti-Harassment Policy Before a Court Reviews It For You

A Milwaukee-area employer learned the hard way that its policy pro­hibiting sexual harassment was not effective to limit its exposure in a federal sexual ha­rassment case. The case offers important les­sons to help employers ensure that their harassment policies will pass legal muster.

V&J Foods, Inc., a Burger King fran­chisee, was named as a defendant in a federal sexual harassment lawsuit after a 35-year-old manager made alleged sexual advances to a 16-year-old employee. The employee at­tempted to complain about the situation, but was unable to find the right person to com­plain to. Ultimately, the employee's mother stepped in to help. The employee was fired shortly thereafter, allegedly for involving her mother in the complaint process.

The company defended the lawsuit by as­serting that it had a policy prohibiting harass­ment that provided a complaint procedure. The trial court agreed and threw the case out. The Seventh Circuit Court of Appeals, how­ever, disagreed and reinstated the case.

The case is significant to employers be­cause, in addition to reinstating the case, the court criticized the company's harassment policy.

According to the court, the policy was not effective in notifying employees how to make complaints. Although the policy told employ­ees to report problems to the district manager, the company did not provide enough infor­mation to let employees know who that per­son was or how to make contact. The court stressed that employers need to make sure that their employees can understand exactly how to make a complaint.

The decision should serve as a reminder for employers to periodically review their ha­rassment policies to make sure they comply with recent legal decisions. The following list, while not exhaustive, includes some key items that employers should think about when re­viewing their harassment policies.

Prohibit all forms of unlawful harass­ment. Unlawful harassment isn't just limited to sexual harassment. Harassment because of an employee's race, religion, sex, disability or other protected characteristic is illegal as well. It is therefore important to make sure that your pol­icy prohibits harassment based on all classifi­cations covered by federal, state and local laws.

Employees must know to whom they can complain and how to contact them. Em­ployees must know how to contact the person designated to receive harassment complaints. A policy that instructs employees to contact the district manager should also explain where they can find contact information. For example, employees could be given a hand­out which provides them with their district manager's name and contact information.

Complaints should be directed to high-level superiors. Harassment policies direct­ing employees to complain to "any supervisor" can create practical problems. First, employees might not understand who is a supervisor and who is not. Second, low-level supervisors may not comprehend the serious­ness of the situation. Rather than reporting the situation up the corporate ladder, they often tell a complaining employee to "just ignore it and it will stop." To avoid this problem, poli­cies should designate higher-level supervisors or HR employees as the contact points.

Employees must be able to bypass the alleged harasser. A policy that instructs an employee to make a complaint to the alleged harasser has no value. Instead, the policy needs to provide an alternative route to make a complaint. Small employers can do this by designating their HR director as the primary contact with the company president as the secondary contact.

Make sure the policy covers harassment by customers, vendors and others. Unlaw­ful harassment is not limited to inappropriate conduct by coworkers and supervisors. Em­ployers should make it clear that inappropri­ate conduct by non-employees will not be tolerated.

Prohibit retaliation. In order to be effec­tive, a harassment policy must assure em­ployees that they will not be retaliated against for making a good-faith claim of harassment.

Provide periodic training to all employ­ees. This step is just as important as having a policy. Companies that foster a culture that does not tolerate inappropriate behavior are far less likely to have harassment situations arise. Second, by conducting training, com­panies ensure that employees understand how to make complaints of harassment.

As with most lawsuits, the best defense to a harassment claim is to take steps to ensure that they never arise. Employers that pay at­tention to the points identified above are one step closer to this goal.

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