I read another federal court opinion last night that reaffirms how important it is for employers to have effective antiharassment policies in their employee handbook.
Before I tell you about the facts of the case, I’ll skip right to the punchlines:
“The employer’s promulgation and dissemination of an antiharassment policy is fundamental to meeting the requirement for exercising reasonable care in preventing sexual harassment.”
Indeed, “an employer is insulated from liability under Title VII for a hostile environment sexual harassment claim premised on constructive knowledge of the harassment when the employer has adopted an anti-discrimination policy that is comprehensive, well-known to employees, vigorously enforced, and provides alternate avenues of redress.”
Fortunately for the defendant-employer, it had an effective policy and made it available to employees (including the plaintiffs) in various ways.
- it maintained a database through which all employees could access its policies,
- distributed its policies to employees at new-hire orientation, and
- provided an “alert” to all employees regarding updates to its policies, which included a directive instructing employees to read the updated policies.
With these reminders about the scourge of sexual harassment in the workplace, the employer expected that victims would promptly report violations.
Indeed, the law is pretty clear on this. Plaintiff-employees who unreasonably delay or fail to take advantage of any preventive or corrective opportunities that a defendant-employer provides to avoid harm often lose their related sexual harassment lawsuits.
Here, the plaintiffs knew about the defendant’s policy. Yet, they waited to complain following alleged sexual harassment. One plaintiff delayed complaining for more than four years; another delayed complaining for more than two years; and the final plaintiff delayed complaining for more than three months. These delays directly contradicted the defendant’s policy which encouraged employees to “report harassment promptly, earlier instead of later.”
The defendant apparently only learned about the alleged sexual harassment from reading about it in the plaintiffs’ EEOC Charges of Discrimination. Still, within days of learning about the allegations, the defendant suspended the alleged harasser, investigated him, and fired him days later. So, the facts supported the defendant’s prompt remedial action after it received actual notice of the misconduct.
Takeaways:
You need a widely disseminated antiharassment policy that includes: (1) the types of behavior that the company will not tolerate, (2) examples of the bad behavior, (3) multiple avenues to complain, (4) encouragement to complaint quickly, (5) an effective complaint process, (6) an explanation of the steps the company will take to address complaints, and (7) points of contact for employees with questions about the policy.
Bonus tips: Pair the policy with regular training on it. And make sure that the policy is clear enough (and in a language) that employees can understand it.
This Friday, October 21, 2022, join me and my partners, Amy Epstein Gluck, and Justin Nahama, on Zoom at Noon ET for a one-hour discussion on employee mental health and wellbeing. It’s free. Click here (https://bit.ly/MentalHealthSuccess) to register.
We’re lucky to have Justin and Amy share their time and wisdom.
Among other things, Justin leads THE CHOPRA FOUNDATION‘s global programs and research efforts to inspire joy and create a critical mass for a peaceful, just, sustainable and healthy world. Justin also founded NuroLux, which supports the Autism community by restoring hope for families impacted by Autism by providing them with the technology to light the path ahead.
We’ll tap into Justin’s passion and authenticity to discover ways to improve employee mental health and well-being in your workplace.
Amy is Employment Counsel and Employment/Litigation Partner at FisherBroyles, LLP and Founding Member, DC at Chief, a private network built to drive more women into positions of power and keep them there. Amy regularly counsels companies on ADA/FMLA issues and spearheaded our firm’s efforts to improve our colleagues’ mental health and wellness. She also developed the “Happy Hour,” a regular voluntary meeting on Zoom where attorneys discuss mental health and self-care to normalize and destigmatize these topics.
We’ll spend some time with Amy on Friday discussing not only HR-compliance issues surrounding employee mental health but also some practical ways to make it a priority for employees to help themselves and provide support for others.
If any of these topics pique your interest, please join us on Friday, October 21, 2022, at Noon ET for the next edition of The Employer Handbook Zoom Office Happy Hour.