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Confronting Workplace Harassment

Employers and their HR professionals have a lot on their minds these days. From the scope of reasonable accommodations for disabilities (is telecommuting a required accommodation?) to when employees are on the clock (during security checks?), burgeoning technology and ever-vigilant employees (and their lawyers) create a wide array of employment issues. Navigating the turbulent waters of employment law is increasingly complex.

Despite the variety of new issues and new claims they face, employers must remain vigilant with respect to workplace harassment. As EEOC reports continually reveal, harassment complaints continue to constitute a healthy proportion of all claims the EEOC addresses. These may range from sexual harassment to harassment based on race, age, religion, disability or national origin.

Harassment complaints are easily made and, because oftentimes they allege purported behavior done in private, difficult to disprove. Because employers may find themselves liable for harassment of their employees by managers, supervisors, colleagues, and perhaps even non-employees, they should proactively take steps to minimize their risks.

The following is a list of some of the things employers should do to reduce their exposure to harassment complaints and litigation (and put themselves in a markedly better position should litigation arise):

1. Implement an anti-harassment policy.

Employers should have a clearly stated policy that explains what harassment is and that it will not be tolerated. The policy should also outline how employees should voice complaints, state that all complaints will be taken seriously and investigated, assure employees that appropriate discipline will be meted out for any/all harassment, and guarantee that the employer will not retaliate against any employee for voicing a complaint.

2. Distribute the policy and train employees

It is important that the employer actually distribute the policy to the employees (and have written confirmation from each employee of receipt) and train them on its meaning.

3. Investigate every allegation of harassment.

Conduct a thorough, confidential investigation that includes interviewing all relevant witnesses and documenting the interviews and process. Do not pick and choose which complaints merit an investigation and which do not; always investigate.

4. Implement appropriate remedial action.

After the investigation, respond appropriately. Depending on the conclusion of the investigation, anything from a warning to termination may be the appropriate response. The goal is to ensure that if there was harassment, that it not recur.

5. Debrief both parties after investigation.

Advise both parties in a general manner of the outcome and assure them that there will be no retaliation for good faith complaints. It may be advisable to also periodically follow up with the complaining employee to ensure there has not been any additional harassment or indication of retaliation.

6. Diligently monitor for signs of retaliation.

Independent of following-up with the complaining employee, employers should be vigilant for any retaliation. EEOC reports indicate a substantial percentage of complaints are for retaliation, and such complaints resonate with jurors.

7. Documentation

Harassment complaints frequently turn into “he said/she said” disputes. To minimize exposure to liability and put themselves in a better position to combat harassment and/or retaliation assertions, employers should have documentation of their policies, conduct, and efforts to investigate and resolve complaints.

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