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Editor's Note: On June 15, 2020, the U.S. Supreme Court ruled that employers violate Title VII's prohibitions against sex discrimination if they fire employees based on sexual orientation or gender identity (Bostock v. Clayton County, No. 17-1618, 2020 BL 220638 (U.S. June 15, 2020), consolidated with Altitude Express, Inc. v. Zarda (No. 17-1623); R.G. & G.R. Harris Funeral Homes Inc. v. EEOC (No. 18-107)).
Federal, state, and local law prohibit discrimination in employment in connection with a broad range of protected classes. With respect to federal law, Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, religion, sex, and national origin. Federal law also prohibits discrimination based on age, disability, and genetic information. As a result, employers are well served (and in some states, required) to develop an anti-discrimination/harassment policy to demonstrate compliance with the law and provide employees with an effective mechanism to have complaints of discrimination/harassment addressed.
In addition, the U.S. Supreme Court in Burlington Industries v. Ellerth 524 U.S. 742, 765 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) created an affirmative defense that allows employers to avoid liability where they maintain a harassment policy with an internal reporting procedure and the plaintiff unreasonably fails to utilize or abide by the policy. An employer who lacks a thorough anti-discrimination/harassment policy which employees can use to file complaints may have difficulty establishing that its conduct was reasonable.
Determine What Laws Apply
⃞ Given that state and local anti-discrimination/harassment laws differ in terms of what groups are protected, it is important to determine what law(s) apply to the employer.
⃞ An employer can go above and beyond what the law requires and provide protection for individuals who belong to groups that aren't protected under applicable law.
⃞ Certain jurisdictions (for example, New York State and New York City) not only require employers to have an anti-discrimination/harassment policy, but also mandate that such policies contain certain information, including but not limited to a complaint form for employees to utilize and contact information for administrative agencies where external complaints of discrimination/harassment can be lodged.
⃞ In addition to requiring written policies, certain jurisdictions require employers to provide anti-discrimination/harassment training and to disseminated anti-discrimination/harassment policies to employees during these trainings.
⃞ There are additional considerations for federal contractors as Executive Order 11246 prohibits federal contractors and subcontractors from engaging in workplace employment discrimination on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin.
⃞ As the categories of protected classes continue to expand, employers would be well served to include “catchall” language to their anti-discrimination/harassment policy, such as “EMPLOYER provides equal employment opportunities to all employees and applicants without regard to race, color, religion, sex, and national origin, age, disability, genetic information, or any other characteristic protected by federal, state or local law.”
⃞ Be mindful of the 21st century workplace and the increasing prevalence of remote/telework arrangements when determining what laws apply to the workforce.
Determine Where to Draw the Line
⃞ It is extremely important for an employer to include in its EEO policy statements that they expressly prohibit any form of unlawful employee harassment. Not only have employers been held liable for unlawful harassment, but supervisors and even coworkers have been held personally liable for unlawful harassment in the workplace.
⃞ Explain that the policy prohibits unwelcome conduct, whether verbal, physical, or visual, and includes any discriminatory employment action and any unwelcome conduct that affects someone because of that individual's protected status.
⃞ While most policies will state that unlawful discrimination/harassment is prohibited, it is up to the employer as to where to “draw the line,” and what type of conduct is prohibited.
⃞ Review descriptions of inappropriate workplace conduct with a focus on the definitions of inappropriate conduct.
⃞ For example, does it include a legal definition, an undefined sexual harassment term, bullying behavior, behavior that unreasonably interferes with employees regardless of motivation, or other definitions? Is it a no tolerance, zero tolerance, or other policy?
⃞ Provide examples of conduct that violate the employer's policy for demonstrable purposes only. Clearly explain that these examples are just that — examples — and not an exhaustive list of prohibited behavior.
⃞ Explain that the policy applies to conduct at off-site work events, business travel, etc.
⃞ Review obligations of employees, supervisors, and others. Does the policy expressly cover officers, directors, customers, and vendors?
Determine Where Complaints Should be Directed
⃞ Employers should ensure that their policies provide multiple avenues for complaint (in part, to ensure that an employee isn't required to report the discrimination/harassment to the individual they are complaining about) and explain how the employer will investigate the complaints it receives.
⃞ Evaluate the sufficiency and effectiveness of internal hotlines, HR structures, open-door options, and designated EEO coordinators.
⃞ Develop and promote additional channels employees would be comfortable using.
Explain Consequences for Violations of the Policy
⃞ The policy should make it clear that if the employer determines that an employee is guilty of harassing another individual, appropriate disciplinary action will be taken against the offending employee, up to and including termination of employment.
⃞ Include a disclaimer making it clear that if, after investigating any complaint of harassment or discrimination, the company determines that the complaint is frivolous and wasn't made in good faith or that an employee has provided false information regarding the complaint, disciplinary action may be taken against the individual who filed the complaint or who gave the false information, up to and including termination of employment.
⃞ The policy should make it clear that all employees have a duty to report any conduct that they believe violates this policy. In addition, employees should be told that they have a duty to cooperate with any investigation conducted by the employer, regardless of whether the investigation is being conducted by company officials or outside parties retained by the employer for this purpose.
⃞ Employers should have in place a clear policy against retaliation that spells out exactly what retaliation is, and makes clear that no retaliation will be tolerated from managers or other employees. The policy also should tell employees what steps to take if they feel they are being retaliated against.
⃞ Employers should explain to complainants that retaliation complaints are taken seriously. Employees should be encouraged to report anything that happens that the employee considers hostile or negative.
⃞ Review and update existing processes regarding compilation of training, acknowledgement of policy, complaint, and resolution of complaint. Consider preparation of annual statistics aggregating number and disposition of complaints.
⃞ Move past “check the box” low-impact computer-based training; invest in live training by outside experts, and provide skills and tools that are impactful and usable by all employees.
Practice Note: In New York, “annual, interactive anti-sexual harassment training for all employees employed in New York City, including supervisory and managerial employees” is required. Check whether your jurisdiction has a similar requirement.
⃞ Deploy effective and practical Equal Employment Opportunity training programs (to ensure that supervisors, front-line managers, and others of authority are acutely aware of their broad Title VII obligations, and of how all non-discrimination laws can be implicated when dealing with employees or applicants).
⃞ Consider making the non-harassment policy a stand-alone policy, split out from (or in addition to) the employee handbook with separate acknowledgment from all employees and new hires.