Excerpted from a Shawe Rosenthal LLP Blog by Fiona W. Ong
The Equal Employment Opportunity Commission has issued guidance to assist federal agencies in preventing and remedying harassment in the workplace – but specifically observed that “many of the practices identified may also be helpful to practitioners outside of the federal government.” Thus, private employers may find the following suggestions useful in terms of both preventing harassment and in defending against claims of harassment before the EEOC.
The EEOC organized its recommendations into four categories. We have selected some of the more useful or interesting recommendations as follows:
Leadership and Accountability. To demonstrate commitment and accountability, top management may undertake the following:
- Periodically meet with those in charge of anti-harassment programs to discuss the state of the program
- Periodically assess harassment risk factors and take appropriate preemptive steps to address and eliminate those factors
- Conduct climate and exit surveys and review EEO complaint data to gauge the prevalence of harassment, retaliation and other unwelcome work-related conduct
- Ensure that the response to harassment allegations is regularly evaluated and documented through an electronic tracking system
- Acknowledge and reward employees, supervisors and managers for creating and maintaining a culture in which harassment is not tolerated
- Incorporate performance measures on harassment prevention and response for supervisors and managers
Comprehensive and Effective Anti-Harassment Policy. In addition to the typical recommendations regarding a comprehensive and clear anti-harassment policy (e.g. using clear language, identifying the protected bases, providing multiple channels of complaint, prohibiting retaliation for reporting harassment, assuring a prompt and thorough investigation and appropriate corrective action, ensuring confidentiality to the extent possible), the EEOC suggests the following:
- Explicitly assure that the policy applies to employees at all levels, as well as applicants
- Discuss how the anti-harassment policy may be violated through work-related conduct on virtual platforms, including social media
- Explain the employer’s duty to investigate and correct harassment even where the alleged victims wish otherwise
- Require managers and supervisors to report harassment to the appropriate officials, and encourage employees to report harassment that they witness or of which they otherwise become aware
- Make the policy available onsite and online in accessible formats (as needed)
- Periodically review and update the policy
Effective and Accessible Anti-Harassment Program. The EEOC notes that policies should not exist in a vacuum, but must be part of a comprehensive program that ensures that all employees understand the anti-harassment procedures. In addition to setting up investigative and remedial procedures, such programs should include the following:
- Allow for anonymous reporting through platforms like hotlines and websites
- Ensure that the program has the necessary resources to respond promptly, thoroughly and effectively to complaints
- Utilize a complaint tracking system to document reports of harassment
- Educate employees and managers about the program
- Consider interim actions to prevent the recurrence of harassing conduct during an investigation
- Convey the outcome of the investigation to the alleged victim and harasser, where appropriate and consistent with relevant legal requirements
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