When you craft your harassment policy there are two important aspects of the policy that many companies miss. First is there has to be a way for someone to report the harassment. Secondly that reporting method has to have alternatives available for the person reporting the harassment. Let me explain why that is important.
The issues surrounding sexual harassment, and now harassment in general, have been around for a long time. The Supreme Court of the United States (SCOTUS) has weighed in on sexual harassment numerous times. They have concluded that companies have a defense against hostile environment harassment. Called the Farragher and Ellerth defense it allows an employer to avoid some liability if “the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and “the plaintiff employee unreasonably failed to take advantage of any protective or corrective opportunities provided by the employer or to avoid harm otherwise.”
Jonathan Crotty and Michael Vanesse of Parker Poe Adams & Bernstein, LLC, wrote about a case that demonstrates the value of having a good harassment policy.
Need of a Bypass
In this particular case an employee of a pizza restaurant complained that his manager had engaged in both sexual and racial harassment. The employee complained that he had reported the harassment to other supervisors. The problem was that he had complained to supervisors that reported to the offending manager. The employee had not availed himself of the opportunity to report to other levels of management. When he did get around to reporting it to higher levels of management the investigated immediately and shortly thereafter terminated the offending manager. If he had used the “bypass” available the harassment would have ended much earlier.
May need to get creative
As I wrote in Harassment and Discrimination Policies: A “Bypass” Tip it is important to have multiple ways an employee can report harassment. With many companies this is reporting to HR. However, some companies don’t have HR, or as I wrote about, sometimes HR reports to the harasser who happens to be the president of the company. In those situations where there is no easy alternative to reporting to HR or different levels of management then you need to get creative. You may need to have a consultant, an EAP, an attorney or a board member that an employee can file a complaint with if they don’t feel they can follow the route suggested in the policy.
On a side note, the Farragher and Ellerth defense is only available to companies where no tangible job action has been taken against the complaining employee. In this case if the employee had been fired as a result of his complaint the result of the court case might have been very different.
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