If you have an anti-harassment policy for your workplace, you may think your business is protected from allegations of a hostile work environment. Not necessarily. Even employers who outline a harassment policy may not be going far enough to prevent or correct harassment at the workplace.
It’s true that employers have an affirmative defense against an employee’s claim of a hostile work environment created by a supervisor. In 1998, the U.S. Supreme Court established that an employer may defend itself against harassment at the workplace charges by proving:
- It exercised reasonable care in order to prevent and promptly correct charges of harassment at the workplace by a supervisor.
- The worker who filed the complaint failed to take advantage of the preventative or corrective opportunities offered by the employer.
But are employers doing enough to meet the criteria of that defense?
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The court system doesn’t think so, especially in regards to proving reasonable care to promptly correct harassment at the workplace. In the 2011 Winchester case, an employer defended itself from a harassment suit by pointing to its Code of Business Conduct, which outlined the company’s anti-harassment policy. The employer provided that anti-harassment policy to workers in a handbook and through the company intranet.
The employer lost the case. Why? Although the company had a policy in print, the court found no evidence that it took any specific courses of action to prevent harassment at the workplace. For example, the court said it found no indication the employer reviewed the policy with employees and supervisors. There was also no evidence the company trained employees on the harassment policy either at the time of their hire or at any time afterward. As a result, the court ruled the employer did not prove it had exercised reasonable care to promptly address harassment at the workplace.
This isn’t the only case in which courts found an employer was not properly preventing harassment at work. The Winchester case cited a series of decisions that had also rejected the argument that an anti-harassment policy alone constituted reasonable care to prevent and correct harassment at the workplace.
What are the responsibilities of an employer in preventing harassment at work?
Adding a harassment prevention policy to an employee handbook is a good start when it comes to preventing a hostile work environment—but it’s not enough. Here are specific actions to consider that may boost your defense against employee allegations:
- Implement regular supervisor and manager harassment at the workplace training to ensure everyone understands the company’s anti-harassment policy. Keep track of all session attendees.
- Give every employee a copy of the policy. Introduce new hires to the anti-harassment policy during the orientation session.
- Discuss and review the policy during regularly scheduled meetings (staff meetings, safety sessions, etc.). Keep records of attendees at those sessions.
The fact that a company has an anti-harassment policy in print may not be enough to defend against costly and time-consuming harassment allegations. Save your company from the potential liability that arises from not properly preventing harassment at work.
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