EEOC’s New Guidance Takes Us Back to the Basics

Anti-harassment policies are nothing new and we would be shocked to find an employee handbook without one.

But, have they really worked?

In the #MeToo era, it has become clear that these policies have not really been effective and employers are facing increasing scrutiny over why they cannot prevent harassment, and how they handle claims of harassment once they are filed.

Layering onto this is recent federal and state legislation, which makes harassment more expensive and public — like the federal tax law that prohibits companies from deducting harassment settlements if the settlement is subject to a nondisclosure agreement, and New York State’s anti-harassment legislation which will prohibit mandatory arbitration of those claims.

These laws coupled with the increased scrutiny make it essential for employers of all sizes to take a hard look at their anti-harassment program, and determine whether it is doing its job — namely: preventing, disclosing, and dealing with bad behavior in the workplace, before that behavior becomes a lawsuit or explodes on the front page.

So what does an effective harassment program look like and how is it implemented?

The EEOC recently published new informal guidance that is an excellent starting place for employers. Appropriately titled, “Promising Practices for Preventing Harassment,” this guidance has been in process for years and is nothing really new.

Even so, that does not make it bad. Indeed, the informal guidance should cause employers to go back to the basics. This guidance serves as a reminder for best practices and gives employers a roadmap for what the EEOC will be looking at when it is investigating harassment claims. For that reason, it is a good resource.

The Core Principles – The EEOC Guidance Can Be Culled Down to 4 Simple Principles:

1. Message from the Top: Senior Leadership Takes Action. The EEOC confirms that a successful harassment prevention strategy must begin with a real commitment from senior leadership to create and maintain a culture where harassment is not tolerated.

Must-adopt practices:

  • Senior Leadership — starting with the CEO — must frequently and clearly state that harassment will not be tolerated;
  • But management must back the message up with ACTION:
    • Allocate sufficient resources (MONEY) for effective harassment prevention strategies;
    • Give those who must create and enforce those policies full authority and the full support of senior leadership; and
    • The most powerful action is DISCIPLINE — no matter who it is, if harassment happens, the person responsible must be disciplined, proportionate with the severity of the offense.
This is spot on in that a company’s intolerance for harassment is a message that comes from the top down. More importantly, your senior leadership’s words must be backed up with action.

One practice in the guidance that we do not recommend is, “Directing staff to periodically, and in different ways, test the complaint system to determine if complaints are received and addressed promptly and appropriately.” Although this is a good idea in theory, “testing” the complaint system is a recipe for disaster and can potentially lead to unintentional claims. Instead, we recommend that employers periodically review the system, rather than “test” its effectiveness.

2. Simplify Your Harassment Policy. The EEOC guidance makes clear that a comprehensive, clear harassment policy is an essential element of an effective harassment prevention strategy. The EEOC guidance provides a comprehensive list of what employers should include in a harassment policy.

Must-adopt practices:

  • Put out a clear and simple policy;
  • Include a simple bullet point list of behaviors that are not acceptable;
  • Make sure that it covers all harassment, not just sexual;
  • Post it on walls, in newsletters, and send it out in electronic format – over and over;
  • Make it clear that reporting is not just encouraged, but is required;
  • State employees MUST report conduct that they believe may be prohibited harassment;
  • A description of the organization’s harassment complaint system; and
  • A good anti-retaliation statement.
Many employer harassment policies are filled with “legalese,” making it difficult, if not impossible, for employees to understand. Our recommendation — keep it simple. Draft clear policies that steer clear of legal jargon. A policy is only as effective as an employee’s ability to comprehend it.

3. Simplify Your Complaint System. The EEOC guidance lists the essential components of an effective harassment complaint system and how to ensure that the employees responsible for receiving, investigating, and resolving complaints are adequately equipped to do so.

Must-adopt practices:

  • Make sure the policy clearly states where employees can complain;
  • The policy should welcome questions, concerns and complaints;
  • Make it clear the employee does NOT need to go to their manager;
  • Give employees multiple people or departments to complain to; and
  • Make sure EACH of those departments understands the process.
We recommend that you simplify the complaint system to encourage internal complaints. Why encourage internal complaints? Because 99% of the time, you can resolve an internal complaint more quickly, cheaply and with less publicity than a formal charge or lawsuit.

Once there is a complaint, every employer should also make sure that:

  • Investigators are neutral, independent, and well-trained;
  • There is follow-up, with the “accused” and the “complainant”;
  • That you document every complaint, from initial intake to investigation to resolution;
  • Prepare a written document summarizing the investigation, findings, and outcome; and
  • Watch for retaliation.
How an employer identifies, handles and investigates a complaint is often make-or-break. While it is easy to identify a formal complaint, not all employees will use the appropriate channels. Mistakes are often made at the initial stage when employers ignore complaints of harassment that are made informally. Management must be trained to distinguish legitimate complaints and take swift action.

In addition to identifying complaints, we recommend that employers implement a thorough and expedient investigation procedure and consistently apply it.

4. Live Harassment Training. The EEOC guidance also makes clear that regular, interactive, and comprehensive harassment training is an essential component of a successful harassment prevention strategy.

Must-adopt practices:

  • All employees should be trained on your policy, but management must receive extra live training;
  • Training must be mandatory, even for “very important people”;
  • Senior leaders must attend the training, and make clear their support for it;
  • Provide training in a clear, easy to understand style and format;
  • Tailor training to the specific needs of the workplace and workforce; and
  • Phones should be off.
In our experience, there is no substitute for live management training, period. An investment in good training sends a message to management that: “THIS IS IMPORTANT.”

We have found that the most critical component in creating an effective harassment training presentation is the attendance and buy-in of senior management. It is also important to tailor training to the specific needs of the workplace and workforce. You quickly lose an audience with a generic presentation. We recommend using real-world examples that are industry-specific to keep your audience engaged and honed in on relevant information.

CONCLUSION We have seen in real life that simply putting a policy in a handbook is not enough — an employer needs a comprehensive program to prevent harassment. This is the most significant takeaway from the EEOC’s informal guidance. Employers must devote significant resources and time to develop and implement comprehensive harassment programs, in order to avoid being the next headline.