While many businesses establish sexual harassment or discrimination policies, many employees do not understand the details of their workplace policies. This is an important topic when you consider the number of discrimination charges filed at the U.S. Equal Opportunity Commission (EEOC), the agency charged with enforcing federal discrimination laws. The EEOC received 89,385 charges of workplace discrimination in 2015, and retaliation made up approximately 44.5% of those charges. These numbers emphasize the fact that workplace discrimination is still an issue. Businesses that simply post a policy may not find this the most effective means of preventing instances of harassment and discrimination in their workplace. Businesses must also train their employees to clearly communicate what is considered unlawful and inappropriate conduct in the workplace. A regular training program may also assist with an employer’s legal defense in a future claim of harassment or discrimination. This article will provide a brief overview of the law and some considerations in implementing and educating employees on harassment and discrimination policies.
Harassment is a form of discrimination that violates certain state and federal laws when it is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information and other protected statuses. Many states, such as Massachusetts, recognize other protected statuses, including gender identity, sexual orientation, ancestry, and one’s status as a veteran. Sexual harassment is another form of discrimination that involves a co-worker’s or supervisor’s unwelcome sexual advances, requests for sexual favors, and verbal or physical harassment of a sexual nature and it affects an individual’s employment, interferes with work performance, or creates an intimidating or offensive work environment.
Many states maintain laws that require or encourage businesses to implement harassment and discrimination policies. Any harassment policy should include terms that clearly describe the prohibited conduct, a complaint process, and provide for prompt and impartial investigations and resolutions. Policies and training should clearly communicate to employees that the employer will discipline anyone who violates the policy, or seeks to retaliate against another employee for their involvement in a complaint. Many harassment policies only cover sexual harassment, but these policies should also include statements to protect against harassment related to the other protected statuses described earlier in this article. The policy should also cover the potential disciplinary actions the employer will take for anyone’s violation of the policy.
After drafting a policy, businesses must then provide regular and comprehensive training to employees. Employers who provide discrimination and harassment training at the start of an employee’s employment, and regularly thereafter, will educate employees and emphasize the importance of preventing such conduct in the workplace. Managers also have additional duties with regard to these policies, and they must receive separate training to learn how to recognize and prevent such misconduct in the workplace. Managers who fully understand what employee conduct may lead to harassment or discrimination will likely be in a position to stop any questionable conduct in a proactive versus reactive manner.
Retaliation is often a topic that does not get sufficient treatment in policies or training. Many employers and managers do not fully understand that it is unlawful to retaliate against an employee who reports discrimination or harassment, or to retaliate against an employee’s participation in any investigation. For example, changing an employee’s assignment after reporting harassment may be considered retaliation if the change of assignment affects the employee’s terms or conditions of employment. Supervisors and managers must receive training to fully understand what conduct may be considered retaliatory and how to handle workplace relations between employees during and after a complaint.
Businesses may use their human resource managers to conduct training on harassment and discrimination, but often the most effective training comes from outside the organization. Attorneys may provide such training to their clients’ employees, or work with other employment attorneys or human resource consultants. These outside professionals often have experience with providing effective employment training programs. A business’s choice on whether to use an employee, the business’s attorney, or an outside professional to conduct the training may also depend on the circumstances of the particular business and any recent incidents of harassment or discrimination. Businesses must carefully choose who will deliver the training to employees, and they should consult with legal counsel to review their harassment and discrimination policies, and obtain advice concerning the implementation and training on such policies.