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Time To Update Anti-Harassment Policies

With all of the news regarding allegations of sexual harassment – against members of the entertainment industry, politicians, and others – it is a good time to review your anti-harassment policy to make sure it is up to date and will provide your organization with some protection against claims. Juries often award large judgments against employers with harassment claims. A good anti-harassment policy that is backed by management and enforced against violators can help employers avoid liability.

Who needs an anti-harassment policy? At the very least, any employer with four or more employees should have both an equal employment opportunity policy (indicating that the employer does not discriminate against individuals in protected classes in making employment decisions) and an anti-harassment policy. The state law that prohibits discrimination and harassment is the Pennsylvania Human Relations Act (“PHRA”), and it covers employers with four or more employees. Federal anti-discrimination laws cover employers with at least 15 employees (Title VII of the Civil Rights Act of 1964, as amended (“Title VII”) and the Americans with Disabilities Act, as amended (“ADA”)), or 20 employees (the Age Discrimination in Employment Act (“ADEA”)). In addition, some cities, such as Lancaster, Harrisburg, Reading, York, Philadelphia, and Pittsburgh, have their own human relations ordinances, which can be more expansive than the state and federal laws, and may cover smaller employers. If your organization has offices in any of these cities, you should check the local ordinances as well.

Why have an anti-harassment policy? One of the best ways for employers to protect against successful claims of harassment by employees is to have a publicized anti-harassment policy that the employer follows. Employers have a defense against claims of harassment if: (1) they exercised reasonable care to prevent and quickly correct any harassment; and (2) the employee unreasonably failed to avoid the harm. Faragher v. Boca Raton, 524 U.S. 775 (1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). Employers who have a good, substantive anti-harassment policy that is publicized to employees (in a handbook or otherwise) and who follow their policy can show that they have met the first prong of the defense. If an employer has such a policy, and the employee has not reported any harassment under the policy, the employer may be able to establish the second prong of the defense as well.

What provisions should a good anti-harassment policy contain? Some of the most important features of an anti-harassment policy are: (1) A description or definition (with examples) of what is prohibited by the policy; (2) A procedure for reporting harassment that allows it to be reported to more than one person; (3) A procedure for investigating claims of harassment; (4) A description of the possible discipline (up to and including termination) to which a harasser may be subject; (5) A description of and a statement against retaliation; and (6) Methods for investigating and disciplining employees who are found to have retaliated against any employee.

An anti-harassment policy is only as good as its enforcement. Top management or owners must make it clear to all employees that the employer takes its responsibility to prevent harassment seriously, and that it does and will enforce its policy. As part of this effort, it is important to have anti-harassment training for all employees, with periodic updates to serve as reminders. Such training should be in person and interactive. The focus of training will differ for managers and non-management personnel, so you may want to have separate sessions for each. In addition, managers to whom reports of harassment may be made must receive specific training regarding their obligations with respect to reporting, investigation and resolution of claims.

What Does This Mean For You? If you do not have an anti-harassment policy, now is the time to implement one. If you already have a policy, you should review it to make sure that it is up to date and comprehensive. Training on anti-harassment is important, and should be done periodically, to make sure all employees are aware of the employer’s commitment to maintaining a harassment-free environment.

If you have any questions or would like assistance with creating or updating an anti-harassment policy or with providing training, please contact S. Whitney Rahman at swr@blakingerthomas.com or (717) 509-7237.

**This update is provided for informational purposes only and
should not be construed as legal advice or as creating an
attorney-client relationship where one does not already exist**