An article written by Employment Law attorney James F. Devine discusses the need for employers to develop a Harassment and Discrimination Policy.

A podcast discussing how to develop a Harassment and Discrimination policy features Employment Law attorneys Caitlin Donahue and James Devine.

PODCAST – Harassment and Discrimination Policy (Caitlin Donahue and James Devine)

Introduction

Harassment and discrimination are bad for business.  Harassment and discrimination may result in high job turnover, absenteeism, low morale, reduced productivity, and costly investigation and litigation.  A sound policy supported by effective protocol can curtail and/or mitigate unnecessary claims and corresponding costs.

The Law

While there is a myriad of federal and state laws that regulate harassment and discrimination, Title VII of the Civil Rights Act of 1964 remains one of the key statutes.  Title VII prohibits harassment and discrimination based on sex (including pregnancy, sexual orientation, and gender identity), race, color, religion, and national origin.  Title VII prohibits adverse employment actions against protected classes, including termination, failure to hire, and demotion.  Other key statutes include the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and the National Labor Relations Board (NLRB).  However, employers must remain aware that these are only some of the many laws and agencies that regulate harassment and discrimination.  Altogether, protected classes under the law include race, color, religion, national origin or ancestry, age, physical or mental disability, veteran status, citizenship, genetic information, and sex.  Throughout this series, we will see how these laws and agencies interact within different facets of employment law.

Employers should be aware of updates to the law, including the Supreme Court’s 2020 decision in Bostock v. Clayton County, Georgia.  Here, the Court held that sex-based discrimination under Title VII includes sexual orientation, gender identity, and gender expression.  Consequently, any form of harassment and discrimination based on sexual orientation, gender identity, and gender expression is unlawful.  Employers should update their policies and protocol to reflect this change in legal status.

Policy and Workplace Culture

Description of the Policy

An effective Harassment and Discrimination Policy has several key components.  Below is a list of crucial aspects of an effective policy:

• Written Policy: This policy should be written and remain available to employees at all times.
• Language Availability: If necessary, this policy should be available in multiple languages. 
• Protected Classes: This policy should describe who is protected from harassment and discrimination under the law.
• Zero Tolerance: This policy should inspire a zero-tolerance culture.  A zero-tolerance culture means that the employer will not tolerate any actions, jokes, or comments based on an individual’s identity as a member of a protected class.
• Multi-Tier Reporting Procedure: This policy should outline a multi-tier complaint procedure so victims are able to report allegations of harassment and discrimination no matter who is engaged in the unlawful actions.
• Filing a Complaint: This policy should describe the process for reporting harassment and discrimination at both the state and federal levels.  Note that the written policy itself is an affirmative defense and can aid in the mitigation of damages.  A policy that fails to follow this guidance may not yield a strong affirmative defense.
• Investigation: This policy should provide the basic outline of investigation procedures and the rights and responsibilities of all involved parties.
• Confidentiality: This policy should notify employees that the employer ensures confidentiality in the investigation process.  The employer should procure a witness list and privately interview witnesses on the list.

Workplace Culture

A written policy alone is not sufficient.  Employers must demonstrate that zero-tolerance pervades every aspect of the employment process.  Employers must understand their responsibilities, from application to interview, and from discipline to termination, to treat all employees consistently and objectively under the prevailing policies.

Employers must also understand how harassment and discrimination is introduced in the workplace.  A harasser may be male or female, and harassment can occur between individuals of the same sex.  Harassment may occur between co-workers, as well as between an employee and a supervisor, an employee and a customer, or an employee and a third party such as a client or vendor.  While a victim may be the person targeted, a third party may also be a victim.  For example, a third party may be a victim of harassment if a third party overhears a conversation and finds it offensive.

To cultivate a zero-tolerance culture, employers must implement harassment and discrimination training for all, which includes everyone from new hires to senior management.  This training should occur initially at onboarding, as well as during annual company training.

Employers must consider how they impart a zero-tolerance culture to their employment base.  Worded differently, employers must ask:  How, without reading the written policy, do employees know the employer has a zero-tolerance policy toward harassment and discrimination?  The intangibles are equally as important as the tangibles.  Employers must demonstrate their culture through their daily interactions, handling of complaints, and response to confirmed instances of harassment and discrimination.

Claims, Damages, and Impact

A victim of unlawful harassment and discrimination may bring claims at the state and federal level.  For example, in Pennsylvania, a victim has 180 days from the last date of unlawful harassment to file a claim with the Pennsylvania Human Relations Commission (PHRC).  At the federal level, a victim has 300 days from the last date of unlawful harassment to file a claim with the Equal Employment Opportunity Commission (EEOC).

When a victim brings a claim for harassment and/or discrimination, an employer is required to retain an attorney to answer the claim.  Thus, these claims quickly become costly for employers.  Should an employee be awarded damages, an employer may be liable for back pay, front pay, emotional distress damages, punitive damages, attorneys’ costs and fees, and reinstatement.

Analysis and Conclusion

Harassment and discrimination can manifest in almost any aspect of the employment relationship, as claims often arise as an augmentation to different types of employment claims.  For example, an employee who sustained a work-related injury may allege retaliation in asserting discrimination in the employer’s return-to-work policies.  Additionally, an employee who tested positive for illicit drugs and is consequently disciplined may allege that the policy was misapplied, and the foundation of the discipline actually rested on the employee’s membership in a protected class.  It is vital that employers maintain an effective Harassment and Discrimination Policy and engage in best practices to prevent these claims and provide affirmative defenses to mitigate damages.

If you have any questions or are in need of assistance in updating your Employee Handbook, please contact Jim Devine, Esq. at jfdevine@c-wlaw.com or 1-888-488-2638.

Disclaimer

The information in this article is provided for general informational purposes only and may not reflect the current law in your jurisdiction.  By reading this article, you understand that there is no attorney-client relationship between you and Cipriani & Werner, P.C. or any of our attorneys.  No information contained in this article should be construed as legal advice from Cipriani & Werner, P.C. or the individual authors.