Clear Policies Effective Against Discrimination and Harassment Lawsuits

By: Joel J. Greenwald, Esq.

In the course of representing and advising employers, it is hard to imagine how many companies I still come across that have not yet implemented written policies and complaint procedures to address issues of discrimination and sexual harassment. Policies prohibiting harassment, sexual and otherwise, complete with a set procedure for employees to complain, are really no longer just optional for employers. The courts have made it far too costly for an employer not to implement these policies.

Simply stated, harassment is verbal or physical conduct that denigrates or shows hostility or aversion toward an individual because of his or her race, color, religion, sex, age, disability, sexual orientation, or any other characteristic protected by law. The most common form is sexual harassment, which is unwanted sexual attention or conduct of a persistent or offensive nature made by a person who knows that such attention or conduct is unwelcome or sexually offensive.

The United States Supreme Court has provided employers a defense to sexual harassment lawsuits, when they have a written sexual harassment policy.  This defense is available where an employer can demonstrate that (1) it had a policy and promptly corrected any harassing behavior and (2) the employee unreasonably failed to take advantage of the employer’s complaint procedure.  This defense has been employed by many companies to dismiss sexual and other types of harassment claims. 

Additionally, employers that have an effective policy and who properly respond to complaints of sexual harassment may be protected from punitive damages, a significant concern in harassment cases.  On the other hand, many courts have noted the absence of such a policy to be a factor to be held against the employer, when assessing both liability and the appropriate damages in harassment cases.

Practically, such policies are useful because they help employers identify potential problem areas.  With an effective policy and complaint procedure in effect, an employer can resolve situations before they escalate into lawsuits. Additionally, internal investigations uncover vital evidence that is useful to defend a litigation if it occurs.

Given the obvious benefits, it is vital that all employers maintain and update a policy and complaint procedure concerning harassment and discrimination. An effective policy should safeguard employee rights, provide uniform expectations and outline the responsibilities of both employee and employer. Not only is it necessary for an employer to implement such a policy, but it is also imperative that there is proof that the policy has been disseminated to all employees.  Failure to do so can have substantial consequences.

Moreover, companies should ensure that all management receives appropriate training on how to handle and investigate such claims when they occur. In addition, companies should designate at least two individuals to whom employees can bring their complaints.  In this light, management should receive adequate training in the procedures of conducting an investigation, including methods of interviewing witnesses.

Appropriate policies and training can prevent lawsuits or severely limit the length of litigations. The costs of implementing a policy and training are minor, and are not a significant burden on an employer’s time.  On the other hand, the costs and potential liability facing an employer associated with protracted litigation can be staggering.  As a result, it is only good business sense for employers to make the minimal investment to implement the appropriate policies and training.

This article was originally published in Exhibit Builder in August of 2004.

The materials contained within this article are for informational purposes only and are not legal advice nor are they to be used as a substitute for legal advice.  These materials have been prepared by Greenwald Doherty LLP and should not be reproduced without permission.  © 2006 Greenwald Doherty LLP all rights reserved.